[Title 7 CFR ]
[Code of Federal Regulations (annual edition) - January 1, 2000 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
7
Parts 210 to 299
Revised as of January 1, 2000
Agriculture
Containing a Codification of documents
of general applicability and future effect
As of January 1, 2000
With Ancillaries
Published by:
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2000
For sale by U.S. Government Printing Office
Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328
[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 7:
Subtitle B--Regulations of the Department of Agriculture
(Continued):
Chapter II--Food and Nutrition Service, Department
of Agriculture 5
Finding Aids:
Material Approved for Incorporation by Reference........ 963
Table of CFR Titles and Chapters........................ 965
Alphabetical List of Agencies Appearing in the CFR...... 983
Redesignation Table..................................... 993
List of CFR Sections Affected........................... 995
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Cite this Code: CFR
To cite the regulations in
this volume, use title,
part, and section number.
Thus, 7 CFR 210.1 refers
to title 7, part 210,
section 1.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
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evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
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To determine whether a Code volume has been amended since its
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EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
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OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
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of provisions in effect on a given date in the past by using the
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INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
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This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
Properly approved incorporations by reference in this volume are
listed in the Finding Aids at the end of this volume.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed in
the Finding Aids of this volume as an approved incorporation by
reference, please contact the agency that issued the regulation
containing that incorporation. If, after contacting the agency, you find
the material is not available, please notify the Director of the Federal
Register, National Archives and Records Administration, Washington DC
20408, or call (202) 523-4534.
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A subject index to the Code of Federal Regulations is contained in a
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and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I), and Acts Requiring Publication
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An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
[[Page vii]]
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
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Raymond A. Mosley,
Director,
Office of the Federal Register.
January 1, 1999.
[[Page ix]]
THIS TITLE
Title 7--Agriculture is composed of fifteen volumes. The parts in
these volumes are arranged in the following order: parts 1-26, 27-52,
53-209, 210-299, 300-399, 400-699, 700-899, 900-999, 1000-1199, 1200-
1599, 1600-1899, 1900-1939, 1940-1949, 1950-1999, and part 2000 to end.
The contents of these volumes represent all current regulations codified
under this title of the CFR as of January 1, 1999.
The Food and Nutrition Service current regulations in the volume
containing parts 210-299, include the Child Nutrition Programs and the
Food Stamp Program. The regulations of the Federal Crop Insurance
Corporation are found in the volume containing parts 400-699.
All marketing agreements and orders for fruits, vegetables and nuts
appear in the one volume containing parts 900-999. All marketing
agreements and orders for milk appear in the volume containing parts
1000-1199. Part 900--General Regulations is carried as a note in the
volume containing parts 1000-1199, as a convenience to the user.
Redesignation tables appear in the Finding Aids section of the
volumes containing parts 210-299 and parts 1600-1899.
For this volume, Linda L. Jones was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Frances D. McDonald, assisted by Alomha S. Morris.
[[Page x]]
[[Page 1]]
TITLE 7--AGRICULTURE
(This book contains parts 210 to 299)
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Part
SUBTITLE B--Regulations of the Department of Agriculture (Continued):
chapter ii--Food and Nutrition Service, Department of
Agriculture............................................... 210
[[Page 3]]
Subtitle B--Regulations of the Department of Agriculture (Continued)
[[Page 5]]
CHAPTER II--FOOD AND NUTRITION SERVICE, DEPARTMENT OF AGRICULTURE
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Editorial Note: Nomenclature changes to chapter II appear at 59 FR
60062, Nov. 22, 1994; 60 FR 19490, Apr. 19, 1995; and 63 FR 9727, Feb.
26, 1998.
SUBCHAPTER A--CHILD NUTRITION PROGRAMS
Part Page
210 National School Lunch Program............... 7
215 Special Milk Program for Children........... 74
220 School Breakfast Program.................... 87
225 Summer Food Service Program................. 119
226 Child and Adult Care Food Program........... 178
227 Nutrition Education and Training Program.... 247
235 State administrative expense funds.......... 256
240 Cash in lieu of donated foods............... 268
245 Determining eligibility for free and reduced
price meals and free milk in schools.... 274
246 Special Supplemental Nutrition Program for
Women, Infants and Children............. 293
247 Commodity Supplemental Food Program......... 365
248 WIC Farmers' Market Nutrition Program (FMNP) 386
SUBCHAPTER B--GENERAL REGULATIONS AND POLICIES--FOOD DISTRIBUTION
250 Donation of foods for use in the United
States, its territories and possessions
and areas under its jurisdiction........ 408
251 The Emergency Food Assistance Program....... 458
252 National Commodity Processing Program....... 475
253 Administration of the Food Distribution
Program for households on Indian
reservations............................ 484
254 Administration of the Food Distribution
Program for Indian households in
Oklahoma................................ 514
SUBCHAPTER C--FOOD STAMP AND FOOD DISTRIBUTION PROGRAM
271 General information and definitions......... 517
272 Requirements for participating State
agencies................................ 535
273 Certification of eligible households........ 595
[[Page 6]]
274 Issuance and use of coupons................. 773
275 Performance reporting system................ 814
276 State agency liabilities and Federal
sanctions............................... 853
277 Payments of certain administrative costs of
State agencies.......................... 862
278 Participation of retail food stores,
wholesale food concerns and insured
financial institutions.................. 899
279 Administrative and judicial review--food
retailers and food wholesalers.......... 924
280 Emergency food assistance for victims of
disasters............................... 928
281 Administration of the Food Stamp Program on
Indian reservations..................... 928
282 Demonstration, research, and evaluation
projects................................ 935
283 Appeals of quality control (``QC'') claims.. 935
284
Provision of a nutrition assistance program for the Commonwealth of the
Northern Mariana Islands (CNMI) [Reserved]
285 Provision of a nutrition assistance grant
for the Commonwealth of Puerto Rico..... 954
SUBCHAPTER D--GENERAL REGULATIONS
295 Availability of information and records to
the public.............................. 958
296-299 [Reserved]
[[Page 7]]
SUBCHAPTER A--CHILD NUTRITION PROGRAMS
PART 210--NATIONAL SCHOOL LUNCH PROGRAM--Table of Contents
Subpart A--General
Sec.
210.1 General purpose and scope.
210.2 Definitions.
210.3 Administration.
Subpart B--Reimbursement Process for States and School Food Authorities
210.4 Cash and donated food assistance to States.
210.5 Payment process to States.
210.6 Use of Federal funds.
210.7 Reimbursement for school food authorities.
210.8 Claims for reimbursement.
Subpart C--Requirements for School Food Authority Participation
210.9 Agreement with State agency.
210.10 Nutrition standards for lunches and menu planning methods.
210.10a Lunch components and quantities for the meal pattern.
210.11 Competitive food services.
210.12 Student, parent and community involvement.
210.13 Facilities management.
210.14 Resource management.
210.15 Reporting and recordkeeping.
210.16 Food service management companies.
Subpart D--Requirements for State Agency Participation
210.17 Matching Federal funds.
210.18 Administrative reviews.
210.19 Additional responsibilities.
210.20 Reporting and recordkeeping.
Subpart E--State Agency and School Food Authority Responsibilities
210.21 Procurement.
210.22 Audits.
210.23 Other responsibilities.
Subpart F--Additional Provisions
210.24 Withholding payments.
210.25 Suspension, termination and grant closeout procedures.
210.26 Penalties.
210.27 Educational prohibitions.
210.28 Pilot project exemptions.
210.29 Management evaluations.
210.30 Regional office addresses.
210.31 OMB control numbers.
Appendix A to Part 210--Alternate Foods for Meals
Appendix B to Part 210--Categories of Foods of Minimal Nutritional Value
Appendix C to Part 210--Child Nutrition Labeling Program
Authority: 42 U.S.C. 1751-1760, 1779.
Source: 53 FR 29147, Aug. 2, 1988, unless otherwise noted.
Subpart A--General
Sec. 210.1 General purpose and scope.
(a) Purpose of the program. Section 2 of the National School Lunch
Act (42 U.S.C. 1751), states: ``It is declared to be the policy of
Congress, as a measure of national security, to safeguard the health and
well-being of the Nation's children and to encourage the domestic
consumption of nutritious agricultural commodities and other food, by
assisting the States, through grants-in-aid and other means, in
providing an adequate supply of food and other facilities for the
establishment, maintenance, operation, and expansion of nonprofit school
lunch programs.'' Pursuant to this act, the Department provides States
with general and special cash assistance and donations of foods acquired
by the Department to be used to assist schools in serving nutritious
lunches to children each school day. In furtherance of Program
objectives, participating schools shall serve lunches that are
nutritionally adequate, as set forth in these regulations, and shall to
the extent practicable, ensure that participating children gain a full
understanding of the relationship between proper eating and good health.
(b) Scope of the regulations. This part sets forth the requirements
for participation in the National School Lunch and Commodity School
Programs. It specifies Program responsibilities of State and local
officials in the areas of program administration, preparation and
service of nutritious lunches, payment of funds, use of program funds,
program monitoring, and reporting and recordkeeping requirements.
Sec. 210.2 Definitions.
For the purpose of this part:
[[Page 8]]
Act means the National School Lunch Act, as amended.
Afterschool care program means a program providing organized child
care services to enrolled school-age children afterschool hours for the
purpose of care and supervision of children. Those programs shall be
distinct from any extracurricular programs organized primarily for
scholastic, cultural or athletic purposes.
Attendance factor means a percentage developed no less than once
each school year which accounts for the difference between enrollment
and attendance. The attendance factor may be developed by the school
food authority, subject to State agency approval, or may be developed by
the State agency. In the absence of a local or State attendance factor,
the school food authority shall use an attendance factor developed by
FNS. When taking the attendance factor into consideration, school food
authorities shall assume that all children eligible for free and reduced
price lunches attend school at the same rate as the general school
population.
Average Daily Participation means the average number of children, by
eligibility category, participating in the Program each operating day.
These numbers are obtained by dividing (a) the total number of free
lunches claimed during a reporting period by the number of operating
days in the same period; (b) the total number of reduced price lunches
claimed during a reporting period by the number of operating days in the
same period; and (c) the total number of paid lunches claimed during a
reporting period by the number of operating days in the same period.
Child means--(a) a student of high school grade or under as
determined by the State educational agency, who is enrolled in an
educational unit of high school grade or under as described in
paragraphs (a) and (b) of the definition of ``School,'' including
students who are mentally or physically disabled as defined by the State
and who are participating in a school program established for the
mentally or physically disabled; or (b) a person under 21 chronological
years of age who is enrolled in an institution or center as described in
paragraphs (c) and (d) of the definition of ``School;'' or (c) For
purposes of reimbursement for meal supplements served in afterschool
care programs, an individual enrolled in an afterschool care program
operated by an eligible school who is 12 years of age or under, or in
the case of children of migrant workers and children with disabilities,
not more than 15 years of age.
CND means the Child Nutrition Division of the Food and Nutrition
Service of the Department.
Commodity School Program means the Program under which participating
schools operate a nonprofit lunch program in accordance with this part
and receive donated food assistance in lieu of general cash assistance.
Schools participating in the Commodity School Program shall also receive
special cash and donated food assistance in accordance with
Sec. 210.4(c).
Days means calendar days unless otherwise specified.
Department means the United States Department of Agriculture.
Distributing agency means a State agency which enters into an
agreement with the Department for the distribution to schools of donated
foods pursuant to part 250 of this chapter.
Donated foods means food commodities donated by the Department for
use in nonprofit lunch programs.
Fiscal year means a period of 12 calendar months beginning October 1
of any year and ending with September 30 of the following year.
FNS means the Food and Nutrition Service, United States Department
of Agriculture.
FNSRO means the appropriate Regional Office of the Food and
Nutrition Service of the Department.
Food component means one of the four food groups which compose the
reimbursable school lunch, i.e., meat or meat alternate, milk, grains/
breads and vegetables/fruits for the purposes of Sec. 210.10(k) or one
of the four food groups which compose the reimbursable school lunch,
i.e., meat or meat alternate, milk, bread or bread alternate, and
vegetable/fruit under Sec. 210.10a.
Food item means one of the five required foods that compose the
reimbursable school lunch, i.e., meat or meat alternate, milk, grains/
breads, and two (2) servings of vegetables,
[[Page 9]]
fruits, or a combination of both for the purposes of Sec. 210.10(k) or
one of the five required foods that compose the reimbursable school
lunch, i.e., meat or meat alternate, milk, bread or bread alternate, and
two (2) servings of vegetables, fruits, or a combination of both for the
purposes of Sec. 210.10a.
Food service management company means a commercial enterprise or a
nonprofit organization which is or may be contracted with by the school
food authority to manage any aspect of the school food service.
Free lunch means a lunch served under the Program to a child from a
household eligible for such benefits under 7 CFR part 245 and for which
neither the child nor any member of the household pays or is required to
work.
Lunch means a meal which meets the nutrition standards and the
appropriate nutrient and calorie levels designated in Sec. 210.10. In
addition, if applicable, a lunch shall meet the requirements by age/
grade groupings in Sec. 210.10(k)(2) or the school lunch pattern for
specified age/grade groups of children as designated in Sec. 210.10a.
Menu item means, under Nutrient Standard Menu Planning or Assisted
Nutrient Standard Menu Planning, any single food or combination of
foods. All menu items or foods offered as part of the reimbursable meal
may be considered as contributing towards meeting the nutrition
standards provided in Sec. 210.10, except for those foods that are
considered as foods of minimal nutritional value as provided for in
Sec. 210.11(a)(2) which are not offered as part of a menu item in a
reimbursable meal. For the purposes of a reimbursable lunch, a minimum
of three menu items must be offered, one of which must be an entree (a
combination of foods or a single food item that is offered as the main
course) and one of which must be fluid milk. Under offer versus serve, a
student shall select, at a minimum, an entree and one other menu item.
If more than three menu items are offered, the student may decline up to
two menu items; however, the entree cannot be declined.
National School Lunch Program means the Program under which
participating schools operate a nonprofit lunch program in accordance
with this part. General and special cash assistance and donated food
assistance are made available to schools in accordance with this part.
Net cash resources means all monies, as determined in accordance
with the State agency's established accounting system, that are
available to or have accrued to a school food authority's nonprofit
school food service at any given time, less cash payable. Such monies
may include, but are not limited to, cash on hand, cash receivable,
earnings on investments, cash on deposit and the value of stocks, bonds
or other negotiable securities.
Nonprofit, when applied to schools or institutions eligible for the
Program, means exempt from income tax under section 501(c)(3) of the
Internal Revenue Code of 1954, as amended; or, in the Commonwealth of
Puerto Rico, certified as nonprofit by the Governor.
Nonprofit school food service means all food service operations
conducted by the school food authority principally for the benefit of
schoolchildren, all of the revenue from which is used solely for the
operation or improvement of such food services.
Nutrient Standard Menu Planning/Assisted Nutrient Standard Menu
Planning mean ways to develop menus based on the analysis for nutrients
in the menu items and foods offered over a school week to determine if
specific levels for a set of key nutrients and calories were met. Such
analysis is based on averages weighted in accordance with the criteria
in Sec. 210.10(i)(5). Such analysis is normally done by a school or a
school food authority. However, for the purposes of Assisted Nutrient
Standard Menu Planning, menu planning and analysis are completed by
other entities and shall incorporate the production quantities needed to
accommodate the specific service requirements of a particular school or
school food authority.
OIG means the Office of the Inspector General of the Department.
Point of Service means that point in the food service operation
where a determination can accurately be made that a reimbursable free,
reduced price or paid lunch has been served to an eligible child.
[[Page 10]]
Program means the National School Lunch Program and the Commodity
School Program.
Reduced price lunch means a lunch served under the Program: (a) to a
child from a household eligible for such benefits under 7 CFR part 245;
(b) for which the price is less than the school food authority
designated full price of the lunch and which does not exceed the maximum
allowable reduced price specified under 7 CFR part 245; and (c) for
which neither the child nor any member of the household is required to
work.
Reimbursement means Federal cash assistance including advances paid
or payable to participating schools for lunches meeting the requirements
of Sec. 210.10 and served to eligible children.
Revenue, when applied to nonprofit school food service, means all
monies received by or accruing to the nonprofit school food service in
accordance with the State agency's established accounting system
including, but not limited to, children's payments, earnings on
investments, other local revenues, State revenues, and Federal cash
reimbursements.
School means: (a) An educational unit of high school grade or under,
recognized as part of the educational system in the State and operating
under public or nonprofit private ownership in a single building or
complex of buildings; (b) any public or nonprofit private classes of
preprimary grade when they are conducted in the aforementioned schools;
or (c) any public or nonprofit private residential child care
institution, or distinct part of such institution, which operates
principally for the care of children, and, if private, is licensed to
provide residential child care services under the appropriate licensing
code by the State or a subordinate level of government, except for
residential summer camps which participate in the Summer Food Service
Program for Children, Job Corps centers funded by the Department of
Labor, and private foster homes. The term ``residential child care
institutions'' includes, but is not limited to: homes for the mentally,
emotionally or physically impaired, and unmarried mothers and their
infants; group homes; halfway houses; orphanages; temporary shelters for
abused children and for runaway children; long-term care facilities for
chronically ill children; and juvenile detention centers. A long-term
care facility is a hospital, skilled nursing facility, intermediate care
facility, or distinct part thereof, which is intended for the care of
children confined for 30 days or more.
School food authority means the governing body which is responsible
for the administration of one or more schools; and has the legal
authority to operate the Program therein or be otherwise approved by FNS
to operate the Program.
School week means the period of time used to determine compliance
with the nutrition standards and the appropriate calorie and nutrient
levels in Sec. 210.10. Further, if applicable, school week is the basis
for conducting Nutrient Standard Menu Planning or Assisted Nutrient
Standard Menu Planning for lunches as provided in Sec. 210.10(i) and
Sec. 210.10(j). The period shall be a normal school week of five
consecutive days; however, to accommodate shortened weeks resulting from
holidays and other scheduling needs, the period shall be a minimum of
three consecutive days and a maximum of seven consecutive days. Weeks in
which school lunches are offered less than three times shall be combined
with either the previous or the coming week.
School year means a period of 12 calendar months beginning July 1 of
any year and ending June 30 of the following year.
Secretary means the Secretary of Agriculture.
7 CFR part 3015 means the Uniform Federal Assistance Regulations
published by the Department to implement OMB Circulars A-21, A-87, A-
102, A-110, and A-122; and Executive Order 12372. (For availability of
OMB Circulars referenced in this definition, see 5 CFR 1310.3.)
7 CFR part 3017 means the Department's regulation to implement
Executive Order 12549, covering governmentwide rules on suspension and
debarment as well as The Drug Free Workplace Act of 1988.
[[Page 11]]
7 CFR part 3018 means the Department's Common Rule regarding
Governmentwide New Restrictions on Lobbying. Part 3018 implements the
requirements established by section 319 of the 1990 Appropriations Act
for the Department of Interior and Related Agencies (Pub. L. 101-121).
7 CFR part 3052 means the Department's regulations implementing OMB
Circular A-133, ``Audits of State, Local Governments, and Non-Profit
Organizations.'' (For availability of OMB Circulars referenced in this
definition, see 5 CFR 1310.3.)
State means any of the 50 States, District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, and, as
applicable, American Samoa and the Commonwealth of the Northern
Marianas.
State agency means (a) the State educational agency; (b) any other
agency of the State which has been designated by the Governor or other
appropriate executive or legislative authority of the State and approved
by the Department to administer the Program in schools, as specified in
Sec. 210.3(b); or (c) the FNSRO, where the FNSRO administers the Program
as specified in Sec. 210.3(c).
State educational agency means, as the State legislature may
determine, (a) the chief State school officer (such as the State
Superintendent of Public Instruction, Commissioner of Education, or
similar officer), or (b) a board of education controlling the State
department of education.
Student with disabilities means any child who has a physical or
mental impairment as defined in Sec. 15b.3 of the Department's
nondiscrimination regulations (7 CFR part 15b).
Subsidized lunch (paid lunch) means a lunch served to children who
are either not eligible for or elect not to receive the free or reduced
price benefits offered under 7 CFR part 245. The Department subsidizes
each paid lunch with both general cash assistance and donated foods.
Although a paid lunch student pays for a large portion of his or her
lunch, the Department's subsidy accounts for a significant portion of
the cost of that lunch.
Yogurt means commercially prepared coagulated milk products obtained
by the fermentation of specific bacteria, that meet milk fat or milk
solid requirements and to which flavoring foods or ingredients may be
added. These products are covered by the Food and Drug Administration's
Definition and Standard of Identity for yogurt, lowfat yogurt, and
nonfat yogurt, 21 CFR 131.200, 21 CFR 131.203, and 21 CFR 131.206,
respectively.
[53 FR 29147, Aug. 2, 1988, as amended at 54 FR 12580, Mar. 28, 1989; 56
FR 32939, July 17, 1991; 58 FR 42487, Aug. 10, 1993; 60 FR 31207, June
13, 1995; 62 FR 10189, Mar. 6, 1997; 64 FR 50740, Sept. 20, 1999]
Sec. 210.3 Administration.
(a) FNS. FNS will act on behalf of the Department in the
administration of the Program. Within FNS, the CND will be responsible
for Program administration.
(b) States. Within the States, the responsibility for the
administration of the Program in schools, as defined in Sec. 210.2,
shall be in the State educational agency. If the State educational
agency is unable to administer the Program in public or private
nonprofit residential child care institutions or nonprofit private
schools, then Program administration for such schools may be assumed by
FNSRO as provided in paragraph (c) of this section, or such other agency
of the State as has been designated by the Governor or other appropriate
executive or legislative authority of the State and approved by the
Department to administer such schools. Each State agency desiring to
administer the Program shall enter into a written agreement with the
Department for the administration of the Program in accordance with the
applicable requirements of this part; part 235; part 245; parts 15, 15a,
15b, and 3015 of Departmental regulations; and FNS instructions.
(c) FNSRO. The FNSRO will administer the Program in nonprofit
private schools or public or nonprofit private residential child care
institutions if the State agency is prohibited by law from disbursing
Federal funds paid to such schools. In addition, the FNSRO
[[Page 12]]
will continue to administer the Program in those States in which
nonprofit private schools or public or nonprofit private residential
child care institutions have been under continuous FNS administration
since October 1, 1980, unless the administration of the Program in such
schools is assumed by the State. The FNSRO will, in each State in which
it administers the Program, assume all responsibilities of a State
agency as set forth in this part and part 245 of this chapter as
appropriate. References in this part to ``State agency'' include FNSRO,
as applicable, when it is the agency administering the Program.
(d) School food authorities. The school food authority shall be
responsible for the administration of the Program in schools. State
agencies shall ensure that school food authorities administer the
Program in accordance with the applicable requirements of this part;
part 245; parts 15, 15a, 15b, and 3015 of Departmental regulations; and
FNS instructions.
Subpart B--Reimbursement Process for States and School Food Authorities
Sec. 210.4 Cash and donated food assistance to States.
(a) General. To the extent funds are available, FNS will make cash
assistance available in accordance with the provisions of this section
to each State agency for lunches and meal supplements served to children
under the National School Lunch and Commodity School Programs. To the
extent donated foods are available, FNS will provide donated food
assistance to distributing agencies for each lunch served in accordance
with the provisions of this part and part 250 of this chapter.
(b) Assistance for the National School Lunch Program. The Secretary
will make cash and/or donated food assistance available to each State
agency and distributing agency, as appropriate, administering the
National School Lunch Program, as follows:
(1) Cash assistance for lunches: Cash assistance payments are
composed of a general cash assistance payment, authorized under section
4 of the Act, and a special cash assistance payment, authorized under
section 11 of the Act. General cash assistance is provided to each State
agency for all lunches served to children in accordance with the
provisions of the National School Lunch Program. Special cash assistance
is provided to each State agency for lunches served under the National
School Lunch Program to children determined eligible for free or reduced
price lunches in accordance with part 245 of this chapter. The total
general cash assistance paid to each State for any fiscal year shall not
exceed the lesser of amounts reported to FNS as reimbursed to school
food authorities in accordance with Sec. 210.5(d)(3) or the total
calculated by multiplying the number of lunches reported in accordance
with Sec. 210.5(d)(1) for each month of service during the fiscal year,
by the applicable national average payment rate prescribed by FNS. The
total special assistance paid to each State for any fiscal year shall
not exceed the lesser of amounts reported to FNS as reimbursed to school
food authorities in accordance with Sec. 210.5(d)(3) or the total
calculated by multiplying the number of free and reduced price lunches
reported in accordance with Sec. 210.5(d)(1) for each month of service
during the fiscal year by the applicable national average payment rate
prescribed by FNS. In accordance with section 11 of the Act, FNS will
prescribe annual adjustments to the per meal national average payment
rate (general cash assistance) and the special assistance national
average payment rates (special cash assistance) which are effective on
July 1 of each year. These adjustments, which reflect changes in the
food away from home series of the Consumer Price Index for all Urban
Consumers, are annually announced by Notice in July of each year in the
Federal Register. FNS will also establish maximum per meal rates of
reimbursement within which a State may vary reimbursement rates to
school food authorities. These maximum rates of reimbursement are
established at the same time and announced in the same Notice as the
national average payment rates.
[[Page 13]]
(2) Donated food assistance. For each school year, FNS will provide
distributing agencies with donated foods for lunches served under the
National School Lunch Program as provided under part 250 of this
chapter. The per lunch value of donated food assistance is adjusted by
the Secretary annually to reflect changes as required under section 6 of
the Act. These adjustments, which reflect changes in the Price Index for
Foods Used in Schools and Institutions, are effective on July 1 of each
year and are announced by Notice in the Federal Register in July of each
year.
(3) Cash assistance for meal supplements. For those eligible schools
(as defined in Sec. 210.10(n)(1) or Sec. 210.10a(j)(1), whichever is
applicable) operating afterschool care programs and electing to serve
meal supplements to enrolled children, funds shall be made available to
each State agency, each school year in an amount no less than the sum of
the products obtained by multiplying:
(i) The number of meal supplements served in the afterschool care
program within the State to children from families that do not satisfy
the income standards for free and reduced price school meals by 2.75
cents;
(ii) The number of meal supplements served in the afterschool care
program within the State to children from families that satisfy the
income standard for free school meals by 30 cents;
(iii) The number of meal supplements served in the afterschool care
program within the State to children from families that satisfy the
income standard for reduced price school meals by 15 cents.
(4) The rates in paragraph (b)(3) are the base rates established in
August 1981 for the CACFP. FNS shall prescribe annual adjustments to
these rates in the same Notice as the National Average Payment Rates for
lunches. These adjustments shall ensure that the reimbursement rates for
meal supplements served under this part are the same as those
implemented for meal supplements in the CACFP.
(c) Assistance for the Commodity School Program. FNS will make
special cash assistance available to each State agency for lunches
served in commodity schools in the same manner as special cash
assistance is provided in the National School Lunch Program. Payment of
such amounts to State agencies is subject to the reporting requirements
contained in Sec. 210.5(d). FNS will provide donated food assistance in
accordance with part 250 of this chapter. Of the total value of donated
food assistance to which it is entitled, the school food authority may
elect to receive cash payments of up to 5 cents per lunch served in its
commodity school(s) for donated foods processing and handling expenses.
Such expenses include any expenses incurred by or on behalf of a
commodity school for processing or other aspects of the preparation,
delivery, and storage of donated foods. The school food authority may
have all or part of these cash payments retained by the State agency for
use on its behalf for processing and handling expenses by the State
agency or it may authorize the State agency to transfer to the
distributing agency all or any part of these payments for use on its
behalf for these expenses. Payment of such amounts to State agencies is
subject to the reporting requirements contained in Sec. 210.5(d). The
total value of donated food assistance is calculated on a school year
basis by adding:
(1) The applicable national average payment rate (general cash
assistance) prescribed by the Secretary for the period of July 1 through
June 30 multiplied by the total number of lunches served during the
school year under the Commodity School Program; and
(2) The national per lunch average value of donated foods prescribed
by the Secretary for the period of July 1 through June 30 multiplied by
the total number of lunches served during the school year under the
Commodity School Program.
[53 FR 29147, Aug. 2, 1988, as amended at 58 FR 42487, Aug. 10, 1993; 60
FR 31207, June 13, 1995]
Sec. 210.5 Payment process to States.
(a) Grant award. FNS will specify the terms and conditions of the
State agency's grant in a grant award document and will generally make
payments available by means of a Letter of Credit issued in favor of the
State agency. The State agency shall obtain funds for
[[Page 14]]
reimbursement to participating school food authorities through
procedures established by FNS in accordance with 7 CFR part 3015. State
agencies shall limit requests for funds to such times and amounts as
will permit prompt payment of claims or authorized advances. The State
agency shall disburse funds received from such requests without delay
for the purpose for which drawn. FNS may, at its option, reimburse a
State agency by Treasury Check. FNS will pay by Treasury Check with
funds available in settlement of a valid claim if payment for that claim
cannot be made within the grant closeout period specified in paragraph
(d) of this section.
(b) Cash-in-lieu of donated foods. All Federal funds to be paid to
any State in place of donated foods will be made available as provided
in part 240 of this chapter.
(c) Recovery of funds. FNS will recover any Federal funds made
available to the State agency under this part which are in excess of
obligations reported at the end of each fiscal year in accordance with
the reconciliation procedures specified in paragraph (d) of this
section. Such recoveries shall be reflected by a related adjustment in
the State agency's Letter of Credit.
(d) Substantiation and reconciliation process. Each State agency
shall maintain Program records as necessary to support the reimbursement
payments made to school food authorities under Sec. 210.7 and Sec. 210.8
and the reports submitted to FNS under this paragraph. The State agency
shall ensure such records are retained for a period of 3 years or as
otherwise specified in Sec. 210.23(c).
(1) Monthly report. Each State agency shall submit a final Report of
School Program Operations (FNS-10) to FNS for each month. The final
reports shall be limited to claims submitted in accordance with
Sec. 210.8 of this part. For the month of October, the final report
shall include the total number of children approved for free lunches,
the total number of children approved for reduced price lunches, and the
total number of children enrolled in participating public schools,
private schools, and residential child care institutions, respectively,
as of the last day of operation in October. The final reports shall be
postmarked and/or submitted no later than 90 days following the last day
of the month covered by the report. States shall not receive Program
funds for any month for which the final report is not submitted within
this time limit unless FNS grants an exception. Upward adjustments to a
State's report shall not be made after 90 days from the month covered by
the report unless authorized by FNS. Downward adjustments to a State's
report shall always be made regardless of when it is determined that
such adjustments are necessary. FNS authorization is not required for
downward adjustments. Any adjustments to a State's report shall be
reported to FNS in accordance with procedures established by FNS.
(2) Quarterly report. Each State agency shall also submit to FNS a
quarterly Financial Status Report (SF-269) on the use of Program funds.
Such reports shall be postmarked and/or submitted no later than 30 days
after the end of each fiscal year quarter.
(3) End of year report. Each State agency shall submit a final
Financial Status Report (SF-269) for each fiscal year. This final fiscal
year grant closeout report shall be postmarked and/or submitted to FNS
within 120 days after the end of each fiscal year or part thereof that
the State agency administered the Program. Obligations shall be reported
only for the fiscal year in which they occur. FNS will not be
responsible for reimbursing Program obligations reported later than 120
days after the close of the fiscal year in which they were incurred.
Grant closeout procedures are to be carried out in accordance with 7 CFR
part 3015.
[53 FR 29147, Aug. 2, 1988, as amended at 54 FR 12580, Mar. 28, 1989; 56
FR 32939, July 17, 1991]
Sec. 210.6 Use of Federal funds.
General. State agencies shall use Federal funds made available under
the Program to reimburse or make advance payments to school food
authorities in connection with lunches and meal supplements served in
accordance with the provisions of this part; except that, with the
approval of FNS, any State agency may reserve an amount up to one
percent of the funds earned in any fiscal
[[Page 15]]
year under this part for use in carrying out special developmental
projects. Advance payments to school food authorities may be made at
such times and in such amounts as are necessary to meet the current
fiscal obligations. All Federal funds paid to any State in place of
donated foods shall be used as provided in part 240 of this chapter.
[53 FR 29147, Aug. 2, 1988, as amended at 58 FR 42487, Aug. 10, 1993]
Sec. 210.7 Reimbursement for school food authorities.
(a) General. Reimbursement payments to finance nonprofit school food
service operations shall be made only to school food authorities
operating under a written agreement with the State agency. Subject to
the provisions of Sec. 210.8(c), such payments may be made for lunches
and meal supplements served in accordance with provisions of this part
and part 245 in the calendar month preceding the calendar month in which
the agreement is executed. These reimbursement payments include general
cash assistance for all lunches served to children under the National
School Lunch Program and special cash assistance payments for free or
reduced price lunches served to children determined eligible for such
benefits under the National School Lunch and Commodity School Programs.
Reimbursement payments shall also be made for meal supplements served to
eligible children in afterschool care programs in accordance with the
rates established in Sec. 210.4(b)(3). Approval shall be in accordance
with part 245 of this chapter.
(b) Assignment of rates. At the beginning of each school year, State
agencies shall establish the per meal rates of reimbursement for school
food authorities participating in the Program. These rates of
reimbursement may be assigned at levels based on financial need; except
that, the rates are not to exceed the maximum rates of reimbursement
established by the Secretary under Sec. 210.4(b) and are to permit
reimbursement for the total number of lunches in the State from funds
available under Sec. 210.4. Within each school food authority, the State
agency shall assign the same rate of reimbursement from general cash
assistance funds for all lunches served to children under the Program.
Assigned rates of reimbursement may be changed at any time by the State
agency, provided that notice of any change is given to the school food
authority. The total general and special cash assistance reimbursement
paid to any school food authority for lunches served to children during
the school year are not to exceed the sum of the products obtained by
multiplying the total reported number of lunches, by type, served to
eligible children during the school year by the applicable maximum per
lunch reimbursements prescribed for the school year for each type of
lunch.
(c) Reimbursement limitations. To be entitled to reimbursement under
this part, each school food authority shall ensure that Claims for
Reimbursement are limited to the number of free, reduced price and paid
lunches and meal supplements that are served to children eligible for
free, reduced price and paid lunches and meal supplements, respectively,
for each day of operation.
(1) Lunch count system. To ensure that the Claim for Reimbursement
accurately reflects the number of lunches and meal supplements served to
eligible children, the school food authority shall, at a minimum:
(i) Correctly approve each child's eligibility for free and reduced
price lunches and meal supplements based on the requirements prescribed
under 7 CFR part 245;
(ii) Maintain a system to issue benefits and to update the
eligibility of children approved for free or reduced price lunches and
meal supplements. The system shall:
(A) Accurately reflect eligibility status as well as changes in
eligibility made after the initial approval process due to verification
findings, transfers, reported changes in income or household size, etc.;
and
(B) Make the appropriate changes in eligibility after the initial
approval process on a timely basis so that the mechanism the school food
authority uses to identify currently eligible children provides a
current and accurate representation of eligible children. Changes in
eligibility which result in increased benefit levels shall be made as
soon as possible but no later than 3
[[Page 16]]
operating days of the date the school food authority makes the final
decision on a child's eligibility status. Changes in eligibility which
result in decreased benefit levels shall be made as soon as possible but
no later than 10 operating days of the date the school food authority
makes the final decision on the child's eligibility status.
(iii) Base Claims for Reimbursement on lunch counts, taken daily at
the point of service, which correctly identify the number of free,
reduced price and paid lunches served to eligible children;
(iv) Correctly record, consolidate and report those lunch and
supplement counts on the Claim for Reimbursement; and
(v) Ensure that Claims for Reimbursement do not request payment for
any excess lunches produced, as prohibited in Sec. 210.10(a)(2) or
Sec. 210.10a(b), whichever is applicable, or non-Program lunches (i.e.,
a la carte or adult lunches) or for more than one meal supplement per
child per day.
(2) Point of service alternatives.
(i) State agencies may authorize alternatives to the point of
service lunch counts provided that such alternatives result in accurate,
reliable counts of the number of free, reduced price and paid lunches
served, respectively, for each serving day. State agencies are
encouraged to issue guidance which clearly identifies acceptable point
of service alternatives and instructions for proper implementation.
School food authorities may select one of the State agency approved
alternatives without prior approval.
(ii) In addition, on a case-by-case basis, State agencies may
authorize school food authorities to use other alternatives to the point
of service lunch count; provided that such alternatives result in an
accurate and reliable lunch count system. Any request to use an
alternative lunch counting method which has not been previously
authorized under paragraph (2)(i) is to be submitted in writing to the
State agency for approval. Such request shall provide detail sufficient
for the State agency to assess whether the proposed alternative would
provide an accurate and reliable count of the number of lunches, by
type, served each day to eligible children. The details of each approved
alternative shall be maintained on file at the State agency for review
by FNS.
(d) The State agency shall reimburse the school food authority for
meal supplements served in eligible schools (as defined in
Sec. 210.10(n)(1) or Sec. 210.10a(j)(1), whichever is applicable)
operating afterschool care programs under the NSLP in accordance with
the rates established in Sec. 210.4(b).
[53 FR 29147, Aug. 2, 1988, as amended at 54 FR 12581, Mar. 28, 1989; 56
FR 32939, July 17, 1991; 58 FR 42487, Aug. 10, 1993; 60 FR 31207, June
13, 1995]
Sec. 210.8 Claims for reimbursement.
(a) Internal controls. The school food authority shall establish
internal controls which ensure the accuracy of lunch counts prior to the
submission of the monthly Claim for Reimbursement. At a minimum, these
internal controls shall include: an on-site review of the lunch counting
and claiming system employed by each school within the jurisdiction of
the school food authority; comparisons of daily free, reduced price and
paid lunch counts against data which will assist in the identification
of lunch counts in excess of the number of free, reduced price and paid
lunches served each day to children eligible for such lunches; and a
system for following up on those lunch counts which suggest the
likelihood of lunch counting problems.
(1) On-site reviews. Every school year, each school food authority
with more than one school shall perform no less than one on-site review
of the lunch counting and claiming system employed by each school under
its jurisdiction. The on-site review shall take place prior to February
1 of each school year. Further, if the review discloses problems with a
school's meal counting or claiming procedures, the school food authority
shall: ensure that the school implements corrective action; and, within
45 days of the review, conducts a follow-up on-site review to determine
that the corrective action resolved the problems. Each on-site review
shall ensure that the school's claim is based on the counting system
authorized by the State agency under Sec. 210.7(c) of this part and that
the counting system, as
[[Page 17]]
implemented, yields the actual number of reimbursable free, reduced
price and paid lunches, respectively, served for each day of operation.
(2) School food authority claims review process. Prior to the
submission of a monthly Claim for Reimbursement, each school food
authority shall review the lunch count data for each school under its
jurisdiction to ensure the accuracy of the monthly Claim for
Reimbursement. The objective of this review is to ensure that monthly
claims include only the number of free, reduced price and paid lunches
served on any day of operation to children currently eligible for such
lunches.
(i) Any school food authority that was found by its most recent
administrative review conducted in accordance with Sec. 210.18, to have
no meal counting and claiming violations may:
(A) Develop internal control procedures that ensure accurate meal
counts. The school food authority shall submit any internal controls
developed in accordance with this paragraph to the State agency for
approval and, in the absence of specific disapproval from the State
agency, shall implement such internal controls. The State agency shall
establish procedures to promptly notify school food authorities of any
modifications needed to their proposed internal controls or of denial of
unacceptable submissions. If the State agency disapproves the proposed
internal controls of any school food authority, it reserves the right to
require the school food authority to comply with the provisions of
paragraph (a)(3) of this section; or
(B) Comply with the requirements of paragraph (a)(3) of this
section.
(ii) Any school food authority that was identified in the most
recent administrative review conducted in accordance with Sec. 210.18,
or in any other oversight activity, as having meal counting and claiming
violations shall comply with the requirements in paragraph (a)(3) of
this section.
(3) Edit checks. (i) The following procedure shall be followed for
school food authorities identified in paragraph (a)(2)(ii) of this
section, by other school food authorities at State agency option, or, at
their own option, by school food authorities identified in paragraph
(a)(2)(i) of this section: the school food authority shall compare each
school's daily counts of free, reduced price and paid lunches against
the product of the number of children in that school currently eligible
for free, reduced price and paid lunches, respectively, times an
attendance factor.
(ii) School food authorities that are identified in subsequent
administrative reviews conducted in accordance with Sec. 210.18 as not
having meal counting and claiming violations and that are correctly
complying with the procedures in paragraph (a)(3)(i) of this section
have the option of developing internal controls in accordance with
paragraph (a)(2)(i) of this section.
(4) Follow-up activity. The school food authority shall promptly
follow-up through phone contact, on-site visits or other means when the
internal controls used by schools in accordance with paragraph (a)(2)(i)
of this section or the claims review process used by schools in
accordance with paragraphs (a)(2)(ii) and (a)(3) of this section suggest
the likelihood of lunch count problems. When problems or errors are
identified, the lunch counts shall be corrected prior to submission of
the monthly Claim for Reimbursement. Improvements to the lunch count
system shall also be made to ensure that the lunch counting system
consistently results in lunch counts of the actual number of
reimbursable free, reduced price and paid lunches served for each day of
operation.
(5) Recordkeeping. School food authorities shall maintain on file,
each month's Claim for Reimbursement and all data used in the claims
review process, by school. Records shall be retained as specified in
Sec. 210.23(c) of this part. School food authorities shall make this
information available to the Department and the State agency upon
request.
(b) Monthly claims. To be entitled to reimbursement under this part,
each school food authority shall submit to the State agency, a monthly
Claim for Reimbursement, as described in paragraph (c) of this section.
(1) Submission timeframes. A final Claim for Reimbursement shall be
postmarked or submitted to the State agency not later than 60 days
following
[[Page 18]]
the last day of the full month covered by the claim. State agencies may
establish shorter deadlines at their discretion. Claims not postmarked
and/or submitted within 60 days shall not be paid with Program funds
unless otherwise authorized by FNS.
(2) State agency claims review process. The State agency shall
review each school food authority's Claim for Reimbursement, on a
monthly basis, in an effort to ensure that monthly claims are limited to
the number of free and reduced price lunches served, by type, to
eligible children.
(i) The State agency shall, at a minimum, compare the number of free
and reduced price lunches claimed to the number of children approved for
free and reduced price lunches enrolled in the school food authority for
the month of October times the days of operation times the attendance
factor employed by the school food authority in accordance with
paragraph (a)(3) of this section or the internal controls used by
schools in accordance with paragraph (a)(2)(i) of this section. At its
discretion, the State agency may conduct this comparison against data
which reflects the number of children approved for free and reduced
price lunches for a more current month(s) as collected pursuant to
paragraph (c)(2) of this section.
(ii) In lieu of conducting the claims review specified in paragraph
(b)(2)(i) of this section, the State agency may conduct alternative
analyses for those Claims for Reimbursement submitted by residential
child care institutions. Such alternatives analyses shall meet the
objective of ensuring that the monthly Claims for Reimbursement are
limited to the numbers of free and reduced price lunches served, by
type, to eligible children.
(3) Follow-up activity. The State agency shall promptly follow-up
through phone contact, on-site visits, or other means when the claims
review process suggests the likelihood of lunch count problems.
(4) Corrective action. The State agency shall promptly take
corrective action with respect to any Claim for Reimbursement which
includes more than the number of lunches served, by type, to eligible
children. In taking corrective action, State agencies may make
adjustments on claims filed within the 60-day deadline if such
adjustments are completed within 90 days of the last day of the claim
month and are reflected in the final Report of School Program Operations
(FNS-10) for the claim month required under Sec. 210.5(d) of this part.
Upward adjustments in Program funds claimed which are not reflected in
the final FNS-10 for the claim month shall not be made unless authorized
by FNS. Except that, upward adjustments for the current and prior fiscal
years resulting from any review or audit may be made, at the discretion
of the State agency. Downward adjustments in amounts claimed shall
always be made, without FNS authorization, regardless of when it is
determined that such adjustments are necessary.
(c) Content of claim. The Claim for Reimbursement shall include data
in sufficient detail to justify the reimbursement claimed and to enable
the State agency to provide the Report of School Program Operations
required under Sec. 210.5(d) of this part. Such data shall include, at a
minimum, the number of free, reduced price and paid lunches and meal
supplements served to eligible children. The claim shall be signed by a
school food authority official.
(1) Consolidated claim. The State agency may authorize a school food
authority to submit a consolidated Claim for Reimbursement for all
schools under its jurisdiction, provided that, the data on each school's
operations required in this section are maintained on file at the local
office of the school food authority and the claim separates consolidated
data for commodity schools from data for other schools. Unless otherwise
approved by FNS, the Claim for Reimbursement for any month shall include
only lunches and meal supplements served in that month except if the
first or last month of Program operations for any school year contains
10 operating days or less, such month may be combined with the Claim for
Reimbursement for the appropriate adjacent month. However, Claims for
Reimbursement may not combine operations occurring in two fiscal years.
If a single State agency administers any combination of the
[[Page 19]]
Child Nutrition Programs, a school food authority shall be able to use a
common claim form with respect to claims for reimbursement for meals
served under those programs.
(2) October data. For the month of October, the State agency shall
also obtain, either through the Claim for Reimbursement or other means,
the total number of children approved for free lunches and meal
supplements, the total number of children approved for reduced price
lunches and meal supplements, and the total number of children enrolled
in the school food authority as of the last day of operation in October.
The school food authority shall submit this data to the State agency no
later than December 31 of each year. State agencies may establish
shorter deadlines at their discretion. In addition, the State agency may
require school food authorities to provide this data for a more current
month if for use in the State agency claims review process under
paragraph (c)(2) of this section.
(d) Advance funds. The State agency may advance funds available for
the Program to a school food authority in an amount equal to the amount
of reimbursement estimated to be needed for one month's operation.
Following the receipt of claims, the State agency shall make
adjustments, as necessary, to ensure that the total amount of payments
received by the school food authority for the fiscal year does not
exceed an amount equal to the number of lunches and meal supplements by
reimbursement type served to children times the respective payment rates
assigned by the State in accordance with Sec. 210.7(b). The State agency
shall recover advances of funds to any school food authority failing to
comply with the 60-day claim submission requirements in paragraph (b) of
this section.
[53 FR 29147, Aug. 2, 1988, as amended at 54 FR 12581, Mar. 28, 1989; 56
FR 32940, July 17, 1991; 58 FR 42487, Aug. 10, 1993; 60 FR 31207, June
13, 1995; 64 FR 50740, Sept. 20, 1999]
Subpart C--Requirements for School Food Authority Participation
Sec. 210.9 Agreement with State agency.
(a) Application. An official of a school food authority shall make
written application to the State agency for any school in which it
desires to operate the Program. Applications shall provide the State
agency with sufficient information to determine eligibility. The school
food authority shall also submit for approval a Free and Reduced Price
Policy Statement in accordance with part 245 of this chapter.
(b) Agreement. Each school food authority approved to participate in
the program shall enter into a written agreement with the State agency
that may be amended as necessary. Nothing in the preceding sentence
shall be construed to limit the ability of the State agency to suspend
or terminate the agreement in accordance with Sec. 210.25. If a single
State agency administers any combination of the Child Nutrition
Programs, that State agency shall provide each school food authority
with a single agreement with respect to the operation of those programs.
The agreement shall contain a statement to the effect that the ``School
Food Authority and participating schools under its jurisdiction, shall
comply with all provisions of 7 CFR parts 210 and 245.'' This agreement
shall provide that each school food authority shall, with respect to
participating schools under its jurisdiction:
(1) Maintain a nonprofit school food service and observe the
limitations on the use of nonprofit school food service revenues set
forth in Sec. 210.14(a) and the limitations on any competitive school
food service as set forth in Sec. 210.11(b);
(2) Limit its net cash resources to an amount that does not exceed 3
months average expenditures for its nonprofit school food service or
such other amount as may be approved in accordance with Sec. 210.19(a);
(3) Maintain a financial management system as prescribed under
Sec. 210.14(c);
[[Page 20]]
(4) Comply with the requirements of the Department's regulations
regarding financial management (7 CFR part 3015);
(5) Serve lunches, during the lunch period, which meet the minimum
requirements prescribed in Sec. 210.10 or 210.10a, whichever is
applicable;
(6) Price the lunch as a unit;
(7) Serve lunches free or at a reduced price to all children who are
determined by the school food authority to be eligible for such meals
under 7 CFR part 245;
(8) Claim reimbursement at the assigned rates only for reimbursable
free, reduced price and paid lunches served to eligible children in
accordance with 7 CFR part 210. Agree that the school food authority
official signing the claim shall be responsible for reviewing and
analyzing meal counts to ensure accuracy as specified in Sec. 210.8
governing claims for reimbursement. Acknowledge that failure to submit
accurate claims will result in the recovery of an overclaim and may
result in the withholding of payments, suspension or termination of the
program as specified in Sec. 210.25. Acknowledge that if failure to
submit accurate claims reflects embezzlement, willful misapplication of
funds, theft, or fraudulent activity, the penalties specified in
Sec. 210.26 shall apply;
(9) Count the number of free, reduced price and paid reimbursable
meals served to eligible children at the point of service, or through
another counting system if approved by the State agency;
(10) Submit Claims for Reimbursement in accordance with Sec. 210.8;
(11) Comply with the requirements of the Department's regulations
regarding nondiscrimination (7 CFR parts 15, 15a, 15b);
(12) Make no discrimination against any child because of his or her
eligibility for free or reduced price meals in accordance with the
approved Free and Reduced Price Policy Statement;
(13) Enter into an agreement to receive donated foods as required by
7 CFR part 250;
(14) Maintain, in the storage, preparation and service of food,
proper sanitation and health standards in conformance with all
applicable State and local laws and regulations;
(15) Accept and use, in as large quantities as may be efficiently
utilized in its nonprofit school food service, such foods as may be
offered as a donation by the Department;
(16) Maintain necessary facilities for storing, preparing and
serving food;
(17) Upon request, make all accounts and records pertaining to its
school food service available to the State agency and to FNS, for audit
or review, at a reasonable time and place. Such records shall be
retained for a period of 3 years after the date of the final Claim for
Reimbursement for the fiscal year to which they pertain, except that if
audit findings have not been resolved, the records shall be retained
beyond the 3 year period as long as required for resolution of the
issues raised by the audit;
(18) Maintain files of currently approved and denied free and
reduced price applications, respectively, and the names of children
approved for free lunches based on documentation certifying that the
child is included in a household approved to receive benefits under the
Food Stamp Program, Food Distribution Program for Households on Indian
Reservations (FDPIR) or Temporary Assistance for Needy Families
(TANF).If the applications and/or documentation are maintained at the
school food authority level, they shall be readily retrievable by
school;
(19) Retain the individual applications for free and reduced price
lunches and meal supplements submitted by families for a period of 3
years after the end of the fiscal year to which they pertain or as
otherwise specified under paragraph (b)(17) of this section.
(20) No later than March 1, 1997, and no later than December 31 of
each year thereafter, provide the State agency with a list of all
elementary schools under its jurisdiction in which 50 percent or more of
enrolled children have been determined eligible for free or reduced
price meals as of the last operating day the preceding October. The
State agency may designate a month other than October for the collection
of this information, in which case the list must be provided to the
State agency within 60 calendar days following the
[[Page 21]]
end of the month designated by the State agency. In addition, each
school food authority shall provide, when available for the schools
under its jurisdiction, and upon the request of a sponsoring
organization of day care homes of the Child and Adult Care Food Program,
information on the boundaries of the attendance areas for the elementary
schools identified as having 50 percent or more of enrolled children
certified eligible for free or reduced price meals.
(c) Afterschool care requirements. Those school food authorities
with eligible schools (as defined in Sec. 210.10(n)(1) or
Sec. 210.10a(j)(1), whichever is applicable) that elect to serve meal
supplements during afterschool care programs, shall agree to:
(1) Serve meal supplements which meet the minimum requirements
prescribed in Sec. 210.10 or Sec. 210.10a, whichever is applicable;
(2) Price the meal supplement as a unit;
(3) Serve meal supplements free or at a reduced price to all
children who are determined by the school food authority to be eligible
for free or reduced price school meals under 7 CFR part 245;
(4) If charging for meals, the charge for a reduced price meal
supplement shall not exceed 15 cents;
(5) Claim reimbursement at the assigned rates only for meal
supplements served in accordance with the agreement;
(6) Claim reimbursement for no more than one meal supplement per
child per day;
(7) Review each afterschool care program two times a year; the first
review shall be made during the first four weeks that the school is in
operation each school year, except that an afterschool care program
operating year round shall be reviewed during the first four weeks of
its initial year of operation, once more during its first year of
operation, and twice each school year thereafter; and
(8) Comply with all requirements of this part, except that, claims
for reimbursement need not be based on ``point of service'' meal
supplement counts (as required by Sec. 210.9(b)(9)).
[53 FR 29147, Aug. 2, 1988, as amended at 54 FR 12581, Mar. 28, 1989; 56
FR 32941, July 17, 1991; 58 FR 42488, Aug. 10, 1993; 60 FR 31208, June
13, 1995; 62 FR 901, Jan. 7, 1997; 63 FR 9104, Feb. 24, 1998; 64 FR
50740, Sept. 20, 1999; 64 FR 72471, Dec. 28, 1999]
Effective Date Note: At 64 FR 72471, Dec. 28, 1999, Sec. 210.9 was
amended by removing the words ``Food Stamp or the Aid to Families with
Dependent Children Programs'' at the end of the first sentence and by
adding ``Food Stamp Program, Food Distribution Program for Households on
Indian Reservations (FDPIR) or Temporary Assistance for Needy Families
(TANF)'' in their place, effective Jan. 27, 2000.
Sec. 210.10 Nutrition standards for lunches and menu planning methods.
(a) General requirements for school lunches. (1) In order to qualify
for reimbursement, all lunches served to children age 2 and older, as
offered by participating schools, shall, at a minimum, meet the
nutrition standards provided in paragraph (b) of this section and the
appropriate level of calories and nutrients provided for in either
paragraph (c) or paragraph (i)(1) of this section for nutrient standard
menu planning and assisted nutrient standard menu planning or in
paragraph (d) of this section for food-based menu planning, whichever is
applicable. Compliance with the nutrition standards and the nutrient and
calorie levels shall be determined by averaging lunches offered over a
school week. Except as otherwise provided herein, school food
authorities shall ensure that sufficient quantities of foods are planned
and produced to meet, at a minimum, the nutrition standards in paragraph
(b) of this section, the appropriate nutrient and calorie levels in
paragraphs (c), (d), or (i)(1) of this section, whichever is applicable,
and to either contain all the required food items in at least the
amounts indicated in paragraph (k) of this section or to supply
sufficient quantities of menu items and foods as provided in paragraphs
(i) or (j) of this section.
(2) School food authorities shall ensure that each lunch is priced
as a unit and that lunches are planned and produced on the basis of
participation
[[Page 22]]
trends, with the objective of providing one reimbursable lunch per child
per day. Any excess lunches that are produced may be offered, but shall
not be claimed for general or special cash assistance provided under
Sec. 210.4. The component requirements for meal supplements served under
the Child and Adult Care Food Program authorized under part 225 of this
chapter shall also apply to meal supplements served by eligible school
food authorities in afterschool care programs under the NSLP.
(3) Production and menu records shall be maintained to demonstrate
that the required number of food components and food items or menu items
are offered on a given day. Production records shall include sufficient
information to evaluate the menu's contribution to the requirements on
nutrition standards in paragraph (b) of this section and the appropriate
levels of nutrients and calories in paragraphs (c), (d) or (i)(1) of
this section, whichever is applicable. If applicable, schools or school
food authorities shall maintain nutritional analysis records to
demonstrate that lunches meet, when averaged over each school week, the
nutrition standards provided in paragraph (b) of this section and the
nutrient and calorie levels for the appropriate age or grade group as
provided for in paragraphs (c) or (i)(1) of this section, whichever is
applicable.
(b) Nutrition standards for reimbursable lunches. School food
authorities shall ensure that participating schools provide nutritious
and well-balanced meals to children. In addition, for children ages 2
and above meals shall be provided based on the nutrition standards
provided in this section.
(1) Provision of one-third of the Recommended Dietary Allowances
(RDA) of protein, calcium, iron, vitamin A and vitamin C to the
applicable age or grade groups in accordance with the appropriate levels
provided in paragraph (c), (d) or (i)(1) of this section, whichever is
applicable;
(2) Provision of the lunchtime energy allowances for children based
on the appropriate age or grade groups in accordance with the levels
provided in paragraphs (c), (d) or (i)(1) of this section, whichever is
applicable;
(3) The applicable recommendations of the 1990 Dietary Guidelines
for Americans which are:
(i) Eat a variety of foods;
(ii) Limit total fat to 30 percent of calories;
(iii) Limit saturated fat to less than 10 percent of calories;
(iv) Choose a diet low in cholesterol;
(v) Choose a diet with plenty of vegetables, fruits, and grain
products; and
(vi) Use salt and sodium in moderation.
(4) The following measures of compliance with the applicable
recommendations of the 1990 Dietary Guidelines for Americans:
(i) A limit on the percent of calories from total fat to 30 percent
based on the actual number of calories offered;
(ii) A limit on the percent of calories from saturated fat to less
than 10 percent based on the actual number of calories offered;
(iii) A reduction of the levels of sodium and cholesterol; and
(iv) An increase in the level of dietary fiber.
(5) School food authorities have three alternatives for menu
planning in order to meet the requirements of this paragraph and the
appropriate nutrient and calorie levels in paragraphs (c), (d) or (i)(1)
of this section, whichever is applicable: nutrient standard menu
planning as provided for in paragraph (i) of this section, assisted
nutrient standard menu planning as provided for in paragraph (j) of this
section, or food-based menu planning as provided for in paragraph (k) of
this section. The actual minimum calorie levels vary depending upon the
alternative followed due to differences in age/grade groupings of each
alternative.
(c) Nutrient levels for school lunches/nutrient analysis. (1) For
the purposes of nutrient standard and assisted nutrient standard menu
planning, as provided for in paragraphs (i) and (j), respectively, of
this section, schools shall, at a minimum, provide calorie and nutrient
levels for school lunches (offered over a school week) for the required
grade groups specified in the chart following:
[[Page 23]]
Minimum Requirements for Nutrient Levels for School Lunches/Nutrient Analysis (School Week Averages)
----------------------------------------------------------------------------------------------------------------
Minimum requirements Optional
---------------------------------------------------
Nutrients and energy allowances Grades 7-
Preschool Grades K-6 12 Grades K-3
----------------------------------------------------------------------------------------------------------------
Energy allowance/calories................................... 517 664 825 633
Total fat (as a percent of actual total food energy)........ (\1\) (\1\) (\1\) (\1\)
Saturated fat (as a percent of actual total food energy).... (\2\) (\2\) (\2\) (\2\)
RDA for protein (g)......................................... 7 10 16 9
RDA for calcium (mg)........................................ 267 286 400 267
RDA for iron (mg)........................................... 3.3 3.5 4.5 3.3
RDA for vitamin A (RE)...................................... 150 224 300 200
RDA for vitamin C (mg)...................................... 14 15 18 15
----------------------------------------------------------------------------------------------------------------
\1\ Not to exceed 30 percent over a school week.
\2\ Less than 10 percent over a school week.
(2) At their option, schools may provide for the calorie and
nutrient levels for school lunches (offered over a school week) for the
age groups specified in the following chart or may develop their own age
groups and their corresponding levels in accordance with paragraph
(i)(1) of this section.
Optional Minimum Nutrient Levels for School Lunches/Nutrient Analysis (School Week Averages)
----------------------------------------------------------------------------------------------------------------
Ages 14 and
Nutrients and energy allowances Ages 3-6 Ages 7-10 Ages 11-13 above
----------------------------------------------------------------------------------------------------------------
Energy allowance/calories................................... 558 667 783 846
Total fat (as a percent of actual total food energy)........ (\1\) (\1\) (\1\) (\1\)
Saturated fat (as a percent of actual total food energy).... (\2\) (\2\) (\2\) (\2\)
RDA for protein (g)......................................... 7.3 9.3 15.0 16.7
RDA for calcium (mg)........................................ 267 267 400 400
RDA for iron (mg)........................................... 3.3 3.3 4.5 4.5
RDA for vitamin A (RE)...................................... 158 233 300 300
RDA for vitamin C (mg)...................................... 14.6 15.0 16.7 19.2
----------------------------------------------------------------------------------------------------------------
\1\ Not to exceed 30 percent over a school week.
\2\ Less than 10 percent over a school week.
(d) Minimum nutrient levels for school lunches/food-based menu
planning. For the purposes of food-based menu planning, as provided for
in paragraph (k) of this section, the following chart provides the
minimum levels, by grade group, for calorie and nutrient levels for
school lunches offered over a school week:
Minimum Nutrient Levels for School Lunches/Food-Based Menu Planning (School Week Averages)
----------------------------------------------------------------------------------------------------------------
Grades 7- Grades K-3
Preschool Grades K-6 12 option
----------------------------------------------------------------------------------------------------------------
Energy allowances (Calories)................................ 517 664 825 633
Total fat (as a percentage of actual total food energy)..... (\1\) (\1\) (\1\) (\1\)
Total saturated fat (as a percentage of actual total food (\2\) (\2\) (\2\) (\2\)
energy)....................................................
Protein (g)................................................. 7 10 16 9
Calcium (mg)................................................ 267 286 400 267
Iron (mg)................................................... 3.3 3.5 4.5 3.3
Vitamin A (RE).............................................. 150 224 300 200
Vitamin C (mg).............................................. 14 15 18 15
----------------------------------------------------------------------------------------------------------------
\1\ Not to exceed 30 percent over a school week.
\2\ Less than 10 percent over a school week.
(e) Choice. To provide variety and to encourage consumption and
participation, schools should, whenever possible, offer a selection of
menu items and
[[Page 24]]
foods from which children may make choices. When a school offers a
selection of more than one type of lunch or when it offers a variety of
menu items, foods or milk for choice within a reimbursable lunch, the
school shall offer all children the same selection regardless of whether
the children are eligible for free or reduced price lunches or pay the
school food authority's designated full price. The school may establish
different unit prices for each type of lunch offered provided that the
benefits made available to children eligible for free or reduced price
lunches are not affected.
(f) Lunch period. At or about mid-day schools shall offer lunches
which meet the requirements of this section during a period designated
as the lunch period by the school food authority. Such lunch periods
shall occur between 10:00 a.m. and 2:00 p.m., unless otherwise exempted
by FNS. With State agency approval, schools that serve children 1-5
years old are encouraged to divide the service of the meal into two
distinct service periods. Such schools may divide the quantities, and/or
menu items, foods or food items offered between these service periods in
any combination that they choose. Schools are also encouraged to provide
an adequate number of lunch periods of sufficient length to ensure that
all students have an opportunity to be served and have ample time to
consume their meals.
(g) Exceptions. Lunches claimed for reimbursement shall meet the
nutrition requirements for reimbursable meals specified in this section.
However, lunches served which accommodate the exceptions and variations
authorized under this paragraph are also reimbursable. Exceptions and
variations are restricted to the following:
(1) Medical or dietary needs. Schools shall make substitutions in
foods listed in this section for students who are considered to have a
disability under 7 CFR part 15b and whose disability restricts their
diet. Schools may also make substitutions for students who do not have a
disability but who are unable to consume the regular lunch because of
medical or other special dietary needs. Substitutions shall be made on a
case by case basis only when supported by a statement of the need for
substitutions that includes recommended alternate foods, unless
otherwise exempted by FNS. Such statement shall, in the case of a
student with a disability, be signed by a physician or, in the case of a
student who is not disabled, by a recognized medical authority.
(2) Ethnic, religious or economic variations. FNS encourages school
food authorities to consider ethnic and religious preferences when
planning and preparing meals. For the purposes of the food-based menu
planning alternative as provided for in paragraph (k) of this section,
FNS may approve variations in the food components of the lunch on an
experimental or on a continuing basis in any school where there is
evidence that such variations are nutritionally sound and are necessary
to meet ethnic, religious, or economic needs.
(3) Natural disaster. In the event of a natural disaster or other
catastrophe, FNS may temporarily allow schools to serve lunches for
reimbursement that do not meet the requirements of this section.
(h) Nutrition disclosure. School food authorities are encouraged to
make information available indicating efforts to meet the nutrition
standards in paragraph (b) of this section.
(i) Nutrient standard menu planning. (1) Adjusted nutrient levels.
(i) At a minimum, schools with children age 2 that choose the nutrient
standard menu planning alternative shall ensure that the nutrition
standards in paragraph (b) and the required preschool level in paragraph
(c)(1) of this section are met over a school week except that, such
schools have the option of either using the nutrient and calorie levels
for preschool children in paragraph (c)(2) of this section or developing
separate nutrient and calorie levels for this age group. The methodology
for determining such levels will be available in menu planning guidance
material provided by FNS.
(ii) At a minimum, schools shall offer meals to children based on
the required grade groups in the table, Minimum Nutrient Levels for
School Lunches/Nutrient Analysis, in paragraph (c)(1) of this section.
However, schools may, at their option, offer meals to children using
[[Page 25]]
the age groups and their corresponding calorie and nutrient levels in
paragraph (c)(2) of this section or, following guidance provided by FNS,
develop their own age or grade groups and their corresponding nutrient
and calorie levels. However, if only one age or grade is outside the
established levels, schools may use the levels for the majority of
children regardless of the option selected.
(2) Contents of reimbursable meal and offer versus serve. (i)
Minimum requirements. For the purposes of this menu planning
alternative, a reimbursable lunch shall include a minimum of three menu
items as defined in Sec. 210.2; one menu item shall be an entree and one
shall be fluid milk as a beverage. An entree may be a combination of
foods or a single food item that is offered as the main course. All menu
items or foods offered as part of the reimbursable meal may be
considered as contributing towards meeting the nutrition standards in
paragraph (b) of this section and the appropriate nutrient and calorie
levels in paragraph (c) or (i)(1) of this section, whichever is
applicable, except for those foods that are considered foods of minimal
nutritional value as provided for in Sec. 210.11(a)(2) which are not
offered as part of a menu item in a reimbursable meal. Such reimbursable
lunches, as offered, shall meet the established nutrition standards in
paragraph (b) and the appropriate nutrient and calorie levels in
paragraphs (c) or (i)(1) of this section, whichever is applicable, when
averaged over a school week.
(ii) Offer versus serve. Each participating school shall offer its
students at least three menu items as required by paragraph (i)(2)(i) of
this section. Under offer versus serve, senior high students must select
at least two menu items and may decline a maximum of two menu items; one
menu item selected must be an entree. At the discretion of the school
food authority, students below the senior high level may also
participate in offer versus serve. The price of a reimbursable lunch
shall not be affected if a student declines a menu item or requests
smaller portions. State educational agencies shall define ``senior
high.''
(3) Nutrient analysis under Nutrient Standard Menu Planning. School
food authorities choosing the nutrient analysis alternative shall
conduct nutrient analysis on all menu items or foods offered as part of
the reimbursable meal. However, those foods that are considered as foods
of minimal nutritional value as provided for in Sec. 210.11(a)(2) which
are not offered as part of a menu item in a reimbursable meal shall not
be included. Such analysis shall be over the course of each school week.
(4) The National Nutrient Database and software specifications. (i)
Nutrient analysis shall be based on information provided in the National
Nutrient Database for Child Nutrition Programs. This database shall be
incorporated into software used to conduct nutrient analysis. Upon
request, FNS will provide information about the database to software
companies and others that wish to develop school food service software
systems.
(ii) Any software used to conduct nutrient analysis shall be
evaluated by FNS or by an FNS designee beforehand and, as submitted, has
been determined to meet the minimum requirements established by FNS.
However, such review does not constitute endorsement by FNS or USDA.
Such software shall provide the capability to perform all functions
required after the basic data has been entered including calculation of
weighted averages and the optional combining of analysis of the lunch
and breakfast programs as provided in paragraph (i)(5) of this section.
(5) Determination of weighted averages. (i) Menu items and foods
offered as part of a reimbursable meal shall be analyzed based on
portion sizes and projected serving amounts and shall be weighted based
on their proportionate contribution to the meals. Therefore, in
determining whether meals satisfy nutritional requirements, menu items
or foods more frequently offered will be weighted more heavily than menu
items or foods which are less frequently offered. Such weighting shall
be done in accordance with guidance issued by FNS as well as that
provided by the software used.
(ii) An analysis of all menu items and foods offered in the menu
over each
[[Page 26]]
school week shall be computed for calories and for each of the following
nutrients: protein; vitamin A; vitamin C; iron; calcium; total fat;
saturated fat; and sodium. The analysis shall also include the dietary
components of cholesterol and dietary fiber.
(iii) At its option, a school food authority may combine analysis of
the National School Lunch and School Breakfast Programs. Such analysis
shall be proportionate to the levels of participation in the two
programs in accordance with guidance issued by FNS.
(6) Comparing average nutrient levels. Once the appropriate
procedures of paragraph (i)(5) of this section have been completed, the
results shall be compared to the appropriate nutrient and calorie
levels, by age/grade groups, in paragraph (c)(1) or (c)(2) of this
section or to the levels developed in accordance with paragraph (i)(1)
of this section, whichever is applicable, to determine the school week's
average. In addition, comparisons shall be made to the nutrition
standards provided in paragraph (b) of this section in order to
determine the degree of conformity over the school week.
(7) Adjustments based on students' selections. The results obtained
under paragraph (i)(5) and (i)(6) of this section shall be used to
adjust future menu cycles to accurately reflect production and the
frequency with which menu items and foods are offered. Menus may require
further analysis and comparison, depending on the results obtained in
paragraph (i)(6) of this section, when production and selection patterns
of students change. The school food authority may need to consider
modifications to the menu items and foods offered based on student
selections as well as modifications to recipes and other specifications
to ensure that the nutrition standards provided in paragraph (b) of this
section and paragraphs (c) or (i)(1) of this section, whichever is
applicable, are met.
(8) Standardized recipes. Under Nutrient Standard Menu Planning,
standardized recipes shall be developed and followed. A standardized
recipe is one that was tested to provide an established yield and
quantity through the use of ingredients that remain constant in both
measurement and preparation methods. USDA/FNS standardized recipes are
included in the National Nutrient Database for the Child Nutrition
Programs. In addition, local standardized recipes used by school food
authorities shall be analyzed for their calories, nutrients and dietary
components, as provided in paragraph (i)(5)(ii) of this section, and
added to the local databases by school food authorities in accordance
with guidance provided by FNS.
(9) Processed foods. Unless already included in the National
Nutrient Database, the calorie amounts, nutrients and dietary
components, as provided in paragraph (i)(5)(ii) of this section, of
purchased processed foods and menu items used by the school food
authority shall be obtained by the school food authority or State agency
and incorporated into the database at the local level in accordance with
FNS guidance.
(10) Menu substitutions. If the need for serving a substitute
food(s) or menu item(s) occurs at least two weeks prior to serving the
planned menu, the revised menu shall be reanalyzed based on the changes.
If the need for serving a substitute food(s) or menu item(s) occurs two
weeks or less prior to serving the planned menu, no reanalysis is
required. However, to the extent possible, substitutions should be made
using similar foods.
(11) Compliance with the nutrition standards. If the analysis
conducted in accordance with paragraphs (i)(1) through (i)(10) of this
section shows that the menus offered are not meeting the nutrition
standards in paragraph (b) of this section and the appropriate levels of
nutrients and calories in paragraph (c)(1) or (c)(2) of this section or
the levels developed in accordance with paragraph (i)(1) of this
section, whichever is applicable, actions, including technical
assistance and training, shall be taken by the State agency, school food
authority, or school, as appropriate, to ensure that the lunches offered
to children comply with the nutrition standards established by paragraph
(b) and the appropriate levels of nutrients and calories in paragraphs
(c) or (i)(1) of this section, whichever is applicable.
[[Page 27]]
(12) Other programs. Any school food authority that operates the
Summer Food Service Program authorized under part 225 of this chapter
and/or the Child and Adult Care Food Program under part 226 of this
chapter may, at its option and with State agency approval, prepare meals
provided for those programs using the nutrient standard menu planning
alternative, except for children under two years of age. For school food
authorities providing meals for adults, FNS will provide guidance on the
level of nutrients and calories needed. Meal supplements shall continue
to be provided based on the appropriate program's meal pattern.
(j) Assisted Nutrient Standard Menu Planning. (1) School food
authorities without the capability to conduct Nutrient Standard Menu
Planning, as provided in paragraph (i) of this section, may choose an
alternative which uses menu cycles developed by other sources. Such
sources may include, but are not limited to the State agency, other
school food authorities, consultants, or food service management
companies. This alternative is Assisted Nutrient Standard Menu Planning.
(2) Assisted Nutrient Standard Menu Planning shall establish menu
cycles that have been developed in accordance with paragraphs (i)(1)
through (i)(10) of this section as well as local food preferences and
local food service operations. These menu cycles shall incorporate the
nutrition standards in paragraph (b) of this section and the appropriate
nutrient and calorie levels in paragraphs (c) or (i)(1) of this section,
whichever is applicable. In addition to the menu cycle, recipes, food
product specifications and preparation techniques shall also be
developed and provided by the entity furnishing Assisted Nutrient
Standard Menu Planning to ensure that the menu items and foods offered
conform to the nutrient analysis determinations of the menu cycle.
(3) At the inception of any use of Assisted Nutrient Standard Menu
Planning, the State agency shall approve the initial menu cycle,
recipes, and other specifications to determine that all required
elements for correct nutrient analysis are incorporated. The State
agency shall also, upon request by the school food authority, provide
assistance with implementation of the chosen system.
(4) After initial service of the menu cycle under the Assisted
Nutrient Standard Menu Planning, the nutrient analysis shall be
reassessed and appropriate adjustments made in accordance with paragraph
(i)(7) of this section.
(5) Under Assisted Nutrient Standard Menu Planning, the school food
authority retains final responsibility for ensuring that all nutrition
standards established in paragraph (b) and the appropriate nutrient and
calorie levels in paragraphs (c) or (i)(1) of this section, whichever
are applicable, are met.
(6) If the analysis conducted in accordance with paragraphs (i)(1)
through (i)(10) and paragraph (j)(4) of this section shows that the
menus offered are not meeting the nutrition standards in paragraph (b)
of this section and the appropriate nutrient and calorie levels in
paragraphs (c) or (i)(1) of this section, whichever is applicable,
actions, including technical assistance and training, shall be taken by
the State agency, school food authority, or school, as appropriate, to
ensure that the lunches offered to children comply with the nutrition
standards established by paragraph (b) and the appropriate nutrient and
calorie levels in paragraphs (c) or (i)(1) of this section, whichever is
applicable.
(7) Any school food authority that operates the Summer Food Service
Program authorized under part 225 of this chapter and/or the Child and
Adult Care Food Program under part 226 of this chapter may, at its
option and with State agency approval, prepare meals provided for those
programs using the assisted nutrient standard menu planning alternative,
except for children under two years of age. For school food authorities
providing meals for adults, FNS will provide guidance on the level of
nutrients and calories needed. Meal supplements shall continue to be
provided based on the appropriate program's meal pattern.
(k) Food-based menu planning. (1) Menu planning alternative. School
food authorities may choose to plan menus using the food-based menu
planning alternative. Under the food-based menu planning alternative,
specific food
[[Page 28]]
components in minimum quantities must be served as provided in
paragraphs (k)(2) through (k)(5) of this section.
(2) Minimum quantities. At a minimum, school food authorities
choosing to plan menus using the food-based menu planning alternative
shall offer all five required food items in the quantities provided in
the following chart:
----------------------------------------------------------------------------------------------------------------
Minimum quantities required for Option for
Meal component ---------------------------------------------------------------------------------
Ages 1-2 Preschool Grades K-6 Grades 7-12 K-Grade 3
----------------------------------------------------------------------------------------------------------------
Milk (as a beverage).......... 6 Ounces....... 6 Ounces....... 8 Ounces...... 8 Ounces...... 8 Ounces.
Meat or Meat Alternate
(quantity of the edible
portion as served).
Lean meat, poultry or fish.... 1 Oz........... 1\1/2\ Oz...... 2 Oz.......... 2 Oz.......... 1\1/2\ Oz.
Cheese........................ 1 Oz........... 1\1/2\ Oz...... 2 Oz.......... 2 Oz.......... 1\1/2\ Oz.
Large egg..................... \1/2\.......... \3/4\.......... 1............. 1............. \3/4\.
Cooked dry beans or peas...... \1/4\ Cup...... \3/8\ Cup...... \1/2\ Cup..... \1/2\ Cup..... \3/8\ Cup.
Peanut butter or other nut or 2 Tbsp......... 3 Tbsp......... 4 Tbsp........ 4 Tbsp........ 3 Tbsp.
seed butters.
Yogurt, plain or flavored, 4 oz. or \1/2\ 6 oz. or \3/4\ 8 oz. or 1 cup 8 oz. or 1 cup 6 oz. or \3/4\
unsweetened or sweetened. cup. cup. cup.
The following may be used to \1/2\ oz.=50%.. \3/4\ Oz.=50%.. 1 Oz.=50%..... 1 Oz.=50%..... \3/4\ Oz.=50%.
meet no more than 50% of the
requirement and must be used
in combination with any of
the above: Peanuts, soynuts,
tree nuts, or seeds, as
listed in program guidance,
or an equivalent quantity of
any combination of the above
meat/meat alternate (1 ounce
of nuts/seeds=1 ounce of
cooked lean meat, poultry or
fish.).
Vegetables/Fruits (2 or more \1/2\ Cup...... \1/2\ Cup...... \3/4\ Cup plus 1 Cup......... \3/4\ Cup.
servings of vegetables or extra \1/2\
fruits or both). Cup over a
week \1\.
Grains/Breads Must be enriched 5 servings per 8 servings per 12 servings 15 servings 10 servings
or whole grain. A serving is week--minimum week--minimum per week-- per week-- per week--
a slice of bread or an of \1/2\ per of 1 per day minimum of 1 minimum of 1 minimum of 1
equivalent serving of day \1\. \1\. per day \1\ per day \1\ per day.\1\
biscuits, rolls, etc., or \1/ \2\. \2\. \2\
2\ cup of cooked rice,
macaroni, noodles, other
pasta products or cereal
grains.
----------------------------------------------------------------------------------------------------------------
\1\ For the purposes of this chart, a week equals five days.
\2\ Up to one grains/breads serving per day may be a dessert.
(3) Meat or meat alternate component. The quantity of meat or meat
alternate shall be the quantity of the edible portion as served. When
the school determines that the portion size of a meat alternate is
excessive, it shall reduce the portion size of that particular meat
alternate and supplement it with another meat/meat alternate to meet the
full requirement. To be counted as meeting the requirement, the meat or
meat alternate shall be served in a main dish or in a main dish and only
one other of the items offered. The Department recommends that if
schools do not offer children choices of meat or meat alternates each
day, they serve no one meat alternate or form of meat (e.g., ground,
diced, pieces) more than three times in a single week.
(i) Vegetable protein products and enriched macaroni with fortified
protein defined in appendix A of this part may be used to meet part of
the meat or meat alternate requirement when used as specified in
appendix A of this part. An enriched macaroni product with fortified
protein as defined in appendix A of this part may be used as part of a
meat alternate or as a grain/bread item, but not as both food components
in the same meal.
(ii) Nuts and seeds and their butters listed in program guidance are
nutritionally comparable to meat or other meat alternates based on
available nutritional data. Acorns, chestnuts, and coconuts shall not be
used as meat alternates due to their low protein and iron content. Nut
and seed meals or flours shall not be used as a meat alternate except as
defined in this part under appendix A: Alternate Foods for Meals. Nuts
or seeds may be used to
[[Page 29]]
meet no more than one-half of the meat/meat alternate requirement.
Therefore, nuts and seeds must be used in the meal with another meat/
meat alternate to fulfill the requirement.
(iii) Yogurt may be used to meet all or part of the meat/meat
alternate requirement. Yogurt served may be either plain or flavored,
unsweetened or sweetened. Noncommercial and/or nonstandardized yogurt
products, such as frozen yogurt, homemade yogurt, yogurt flavored
products, yogurt bars, yogurt covered fruit and/or nuts or similar
products shall not be credited. Four ounces (weight) or \1/2\ cup
(volume) of yogurt fulfills the equivalent of one ounce of the meat/meat
alternate requirement in the meal pattern.
(4) Vegetables and fruits. Full strength vegetable or fruit juice
may be counted to meet not more than one-half of the vegetable/fruit
requirement. Cooked dry beans or peas may be used as a meat alternate or
as a vegetable, but not as both food components in the same meal. For
children in kindergarten through grade six, the requirement for this
component is based on minimum daily servings plus an additional \1/2\
cup in any combination over a five day period.
(5) Grains/breads. (i) All grains/breads such as bread, biscuits,
muffins or rice, macaroni, noodles, other pastas or cereal grains such
as bulgur or corn grits, shall be enriched or whole grain or made with
enriched or whole grain meal or flour.
(ii) Unlike the other component requirements, the grains/breads
requirement is based on minimum daily servings and total servings per
week. The requirement for this component is based on minimum daily
servings plus total servings over a five day period. The servings for
biscuits, rolls, muffins, and other grain/bread varieties are specified
in the Food Buying Guide for Child Nutrition Programs (PA 1331), an FNS
publication.
(6) Offer versus serve. Each school shall offer its students all
five required food items as set forth in the table presented under
paragraph (k)(2) of this section. Senior high students shall be
permitted to decline up to two of the five required food items. At the
discretion of the school food authority, students below the senior high
level may be permitted to decline one or two of the required five food
items. The price of a reimbursable lunch shall not be affected if a
student declines food items or accepts smaller portions. State
educational agencies shall define ``senior high.''
(7) Outlying areas. Schools in American Samoa, Puerto Rico and the
Virgin Islands may serve a starchy vegetable such as yams, plantains, or
sweet potatoes to meet the grain/bread requirement. For the Commonwealth
of the Northern Mariana Islands, FNS has established a menu consistent
with the food-based menu alternative and with local food consumption
patterns and which, given available food supplies and food service
equipment and facilities, provides optimum nutrition consistent with
sound dietary habits for participating children. The State agency shall
attach to and make a part of the written agreement required under
Sec. 210.9 the requirements of that menu option.
(l) Milk. (1) Varieties. Regardless of the menu planning alternative
chosen, schools shall offer students fluid milk. The selection of the
types of milk offered shall be consistent with the types of milk
consumed in the prior year. This requirement does not preclude schools
from offering additional kinds of milk. However, in the event that a
particular type of milk represents less than one (1) percent of the
total amount of milk consumed in the previous year, a school may elect
not to make this type of milk available. All milk served shall be
pasteurized fluid types of milk which meet State and local standards for
such milk; except that, in the meal pattern for infants under 1 year of
age, the milk shall be breast milk or iron-fortified infant formula. All
milk shall contain vitamins A and D at levels specified by the Food and
Drug Administration and be consistent with State and local standards for
such milk.
(2) Insufficient milk supply. The inability of a school to obtain a
supply of milk shall not bar it from participation in the Program and is
to be resolved as follows:
(i) If emergency conditions temporarily prevent a school that
normally
[[Page 30]]
has a supply of fluid milk from obtaining delivery of such milk, the
State agency may approve the service of lunches during the emergency
period with an available alternate form of milk or without milk.
(ii) If a school is unable to obtain a supply of any type of fluid
milk on a continuing basis, the State agency may approve the service of
lunches without milk if the school uses an equivalent amount of canned
or dry milk in the preparation of the lunch. In Alaska, Hawaii, American
Samoa, Guam, Puerto Rico, the Commonwealth of the Northern Mariana
Islands, and the Virgin Islands, if a sufficient supply of fluid milk
cannot be obtained, ``milk'' shall include reconstituted or recombined
milk, or as otherwise provided under written exception by FNS.
(m) Infant lunch pattern. (1) Definitions for infant meals. For the
purpose of this section:
(i) Infant cereal means any iron-fortified dry cereal especially
formulated and generally recognized as cereal for infants and that is
routinely mixed with breast milk or iron-fortified infant formula prior
to consumption.
(ii) Infant formula means any iron-fortified formula intended for
dietary use solely as a food for normal, healthy infants; excluding
those formulas specifically formulated for infants with inborn errors of
metabolism or digestive or absorptive problems. Infant formula, as
served, must be in liquid state at recommended dilution.
(2) Infants under the age of one. Infants under 1 year of age shall
be served an infant lunch as specified in this paragraph when they
participate in the Program. Foods within the infant lunch pattern shall
be of texture and consistency appropriate for the particular age group
being served, and shall be served to the infant during a span of time
consistent with the infant's eating habits. For infants 4 through 7
months of age, solid foods are optional and should be introduced only
when the infant is developmentally ready. Whenever possible the school
should consult with the infant's parent in making the decision to
introduce solid foods. Solid foods should be introduced one at a time on
a gradual basis with the intent of ensuring health and nutritional well-
being. For infants 8 through 11 months of age, the total amount of food
authorized in the meal patterns set forth below must be provided in
order to qualify for reimbursement. Additional foods may be served to
infants 4 months of age and older with the intent of improving their
overall nutrition. Breast milk, provided by the infant's mother, may be
served in place of infant formula from birth through 11 months of age.
Either breast milk or iron-fortified infant formula shall be served for
the entire first year. For some breastfed infants who regularly consume
less than the minimum amount of breast milk per feeding, a serving of
less than the minimum amount of breast milk may be offered. In these
situations, additional breast milk must be offered if the infant is
still hungry. The infant lunch pattern shall contain, as a minimum, each
of the following components in the amounts indicated for the appropriate
age group:
(i) Birth through 3 months--4 to 6 fluid ounces of breast milk or
iron-fortified infant formula.
(ii) 4 through 7 months:
(A) 4 to 8 fluid ounces of breast milk or iron-fortified infant
formula;
(B) 0 to 3 tablespoons of iron-fortified dry infant cereal
(optional); and
(C) 0 to 3 tablespoons of fruit or vegetable of appropriate
consistency or a combination of both (optional).
(iii) 8 through 11 months:
(A) 6 to 8 fluid ounces of breast milk or iron-fortified infant
formula or 6 to 8 fluid ounces of whole milk;
(B) 2 to 4 tablespoons of iron-fortified dry infant cereal and/or 1
to 4 tablespoons meat, fish, poultry, egg yolk, or cooked dry beans or
peas, or \1/2\ to 2 ounces (weight) of cheese or 1 to 4 ounces (weight
or volume) of cottage cheese, cheese food or cheese spread of
appropriate consistency; and
(C) 1 to 4 tablespoons of fruit or vegetable of appropriate
consistency or a combination of both.
[[Page 31]]
Lunch Pattern for Infants
--------------------------------------------------------------------------------------------------------------------------------------------------------
Birth through 3 months 4 through 7 months 8 through 11 months
--------------------------------------------------------------------------------------------------------------------------------------------------------
Lunch............................ 4-6 fl.oz. breast milk 2,3 or formula 4-8 fl.oz. breast milk 2,3 or formula 6-8 fl.oz. breast milk 2,3 or
\1\ \1\ formula \1\; and
...................................... 0-3 Tbsp. Infant cereal 1,4; 2-4 Tbsp. Infant cereal 1; and/or
...................................... 0-3 Tbsp. Fruit and/or vegetable \4\ 1-4 Tbsp. meat, fish, poultry, egg
yolk, cooked dry beans, or peas; or
...................................... ...................................... \1/2\-2 oz. cheese; or
...................................... ...................................... 1-4 Tbsp. cottage cheese, cheese
food, or cheese spread; and
...................................... ...................................... 1-4 Tbsp. fruit and/or vegetable.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Infant formula and dry infant cereal shall be iron-fortified.
\2\ It is recommended that breast milk be served in place of formula from birth through 11 months.
\3\ For some breastfed infants who regularly consume less than the minimum amount of breast milk per feeding, a serving of less than the minimum amount
of breast milk may be offered, with additional breast milk offered if the infant is still hungry.
\4\ A serving of this component shall be optional.
[[Page 32]]
(n) Supplemental food. Eligible schools operating afterschool care
programs may be reimbursed for one meal supplement served to an eligible
child (as defined in Sec. 210.2) per day.
(1) Eligible schools mean schools that:
(i) Operate school lunch programs under the National School Lunch
Act;
(ii) Sponsor afterschool care programs as defined in Sec. 210.2; and
(iii) Were participating in the Child and Adult Care Food Program as
of May 15, 1989.
(2) Meal supplements shall contain two different components from the
following four:
(i) A serving of fluid milk as a beverage, or on cereal, or used in
part for each purpose;
(ii) A serving of meat or meat alternate. Nuts and seeds and their
butters listed in program guidance are nutritionally comparable to meat
or other meat alternates based on available nutritional data. Acorns,
chestnuts, and coconuts are excluded and shall not be used as meat
alternates due to their low protein content. Nut or seed meals or flours
shall not be used as a meat alternate except as defined under appendix
A: Alternate Foods for Meals of this part;
(iii) A serving of vegetable(s) or fruit(s) or full-strength
vegetable or fruit juice, or an equivalent quantity of any combination
of these foods. Juice may not be served when milk is served as the only
other component;
(iv) A serving of whole-grain or enriched bread; or an equivalent
serving of cornbread, biscuits, rolls, muffins, etc., made with whole-
grain or enriched meal or flour; or a serving of cooked whole-grain or
enriched pasta or noodle products such as macaroni, or cereal grains
such as rice, bulgur, or corn grits; or an equivalent quantity of any
combination of these foods.
(3) Infant supplements shall contain the following:
(i) Birth through 3 months: 4-6 fluid ounces of breast milk or iron
fortified infant formula.
(ii) 4 through 7 months: 4-6 fluid ounces of breast milk or iron
fortified infant formula.
(iii) 8 through 11 months: 2-4 fluid ounces of breast milk or iron
fortified infant formula or full strength fruit juice; 0-\1/2\ slice of
crusty bread or 0-2 cracker type products made from whole-grain or
enriched meal or flour that are suitable for an infant for use as a
finger food when appropriate. To improve the nutrition of participating
children over one year of age, additional foods may be served with the
meal supplements as desired.
(4) The minimum amounts of food components to be served as meal
supplements as set forth in paragraphs (n)(2) and (n)(3) of this section
are as follows. Select two different components from the four listed.
(Juice may not be served when milk is served as the only other
component.)
Meal Supplement Chart for Children
----------------------------------------------------------------------------------------------------------------
Snack (supplement) for children Children 1 and 2 Children 3 through 5 Children 6 through 12
----------------------------------------------------------------------------------------------------------------
(Select two different components
from the four listed)
Milk, fluid......................... \1/2\ cup............... \1/2\ cup.............. 1 cup.
Meat or meat alternate \4\.......... \1/2\ ounce............. \1/2\ ounce............ 1 ounce.
Juice or fruit or vegetable......... \1/2\ cup............... \1/2\ cup.............. \3/4\ cup.
Bread and/or cereal: Enriched or \1/2\ slice............. \1/2\ slice............ 1 slice.
whole grain bread or.
Cereal: Cold dry or................. \1/4\ cup \1\........... \1/3\ cup \2\.......... \3/4\ cup \3\.
Hot cooked.......................... \1/4\ cup............... \1/4\ cup.............. \1/2\ cup.
----------------------------------------------------------------------------------------------------------------
\1\ \1/4\ cup (volume) or \1/3\ ounce (weight), whichever is less.
\2\ \1/3\ cup (volume) or \1/2\ ounce (weight), whichever is less.
\3\ \3/4\ cup (volume) or 1 ounce (weight), whichever is less.
\4\ Yogurt may be used as meat/meat alternate. You may serve 4 ounces (weight) or \1/2\ cup (volume) of plain,
or sweetened and flavored yogurt to fulfill the equivalent of 1 ounce of the meat/meat alternate component.
For younger children, 2 ounces (weight) or \1/4\ cup (volume) may fulfill the equivalent of \1/2\ ounce of the
meat/meat alternate requirement.
Caution: Children under five years of age are at the highest risk of choking. USDA recommends that nuts and/or
seeds be served to them ground or finely chopped in a prepared food.
[[Page 33]]
Supplements for Infants
--------------------------------------------------------------------------------------------------------------------------------------------------------
Birth through 3 months 4 through 7 months 8 through 11 months
--------------------------------------------------------------------------------------------------------------------------------------------------------
Supplement (snack)............... 4-6 fl. oz. breast milk 2,3 or 4-6 fl. oz. breast milk 2,3 or 2-4 fl. oz breast milk 2,3, formula
formula \1\ formula \1\ 1, or fruit juice \4\;
...................................... ...................................... 0-\1/2\ bread \5\ or
...................................... ...................................... 0-2 crackers \5\.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Infant formula shall be iron-fortified.
\2\ It is recommended that breast milk be served in place of formula from birth through 11 months.
\3\ For some breastfed infants who regularly consume less than the minimum amount of breast milk per feeding, a serving of less than the minimum amount
of breast milk may be offered with additional breast milk offered if the infant is still hungry.
\4\ Fruit juice shall be full-strength.
\5\ Bread and bread alternates shall be made from whole-grain or enriched meal or flour. A serving of this component shall be optional.
[[Page 34]]
(o) Implementation of the nutrition standards. School food
authorities shall comply with the 1990 Dietary Guidelines for Americans
as provided in paragraph (b) of this section no later than School Year
1996-97 except that State agencies may grant waivers to postpone
implementation until no later than School Year 1998-99. Such waivers
shall be granted by the State agency using guidance provided by the
Secretary.
[60 FR 31208, June 13, 1995, 60 FR 57146, Nov. 14, 1995, as amended at
61 FR 37671, July 19, 1996; 62 FR 10189, Mar. 6, 1997; 64 FR 61773, Nov.
15, 1999]
Sec. 210.10a Lunch components and quantities for the meal pattern.
(a) Meal pattern definitions. For the purpose of this section:
(1) Infant cereal means any iron-fortified dry cereal especially
formulated and generally recognized as cereal for infants and that is
routinely mixed with breast milk or iron-fortified infant formula prior
to consumption.
(2) Infant formula means any iron-fortified formula intended for
dietary use solely as a food for normal, healthy infants; excluding
those formulas specifically formulated for infants with inborn errors of
metabolism or digestive or absorptive problems. Infant formula, as
served, must be in liquid state at recommended dilution.
(b) General. School food authorities shall ensure that participating
schools provide nutritious and well-balanced lunches to children in
accordance with the provisions of this section. The requirements and
recommendations of this section are designed so that the nutrients of
the lunch, averaged over a period of time, approximate one-third of the
Recommended Dietary Allowances for children of each age/grade group as
specified in paragraph (c) of this section. School food authorities
shall ensure that each lunch is priced as a unit. Except as otherwise
provided herein, school food authorities shall ensure that sufficient
quantities of food are planned and produced so that lunches provided
contain all the required food items in at least the amounts indicated in
the table presented under paragraph (c) of this section. School food
authorities shall ensure that lunches are planned and produced on the
basis of participation trends, with the objective of providing one
reimbursable lunch per child per day. Production and menu records shall
be maintained to demonstrate that the required number of food components
and food items are offered on any given day. Production records shall
include sufficient information to evaluate the menu's contribution to
the lunch pattern specified in paragraph (c) of this section. Any excess
lunches that are produced may be served, but shall not be claimed for
general or special cash assistance provided under Sec. 210.4. The
component requirements for meal supplements served under the CACFP shall
also apply to meal supplements served by eligible school food
authorities in afterschool care programs under the NSLP.
(c) Minimum required lunch quantities. Schools that are able to
provide quantities of food to children solely on the basis of their ages
or grade level should do so. Schools that cannot serve children on the
basis of age or grade level shall provide all school age children Group
IV portions as specified in the table presented in this paragraph.
Schools serving children on the basis of age or grade level shall plan
and produce sufficient quantities of food to provide Groups I-IV no less
than the amounts specified for those children in the table presented in
this paragraph, and sufficient quantities of food to provide Group V no
less than the specified amounts for Group IV. It is recommended that
such schools plan and produce sufficient quantities of food to provide
Group V children the larger amounts specified in the table. Schools that
provide increased portion sizes for Group V may comply with children's
requests for smaller portion sizes of the food items; however, schools
shall plan and produce sufficient quantities of food to at least provide
the serving sizes required for Group IV. Schools shall ensure that
lunches are served with the objective of providing the per lunch
minimums for each age and grade level as specified in the following
table:
[[Page 35]]
School Lunch Pattern--Per Lunch Minimums
----------------------------------------------------------------------------------------------------------------
Minimum Quantities Recommended
------------------------------------------------------------------ quantities:
Food Components and Food Items Group IV, age Group V, 12
Group I, age 1- Group II, age 3- Group III, age 9 and older (4- years and
2 (Preschool) 4 (Preschool) 5-8 (K-3) 12) older (7-12)
----------------------------------------------------------------------------------------------------------------
Milk (as a beverage): \3/4\ cup (6 \3/4\ cup (6 \1/2\ pint (8 \1/2\ pint (8 \1/2\ pint (8
Fluid whole milk and fl. oz.). fl. oz.). fl. oz.). fl. oz.). fl. oz.)
fluid unflavored lowfat
milk must be offered;
(Flavored fluid milk,
skim milk or buttermilk
optional).
Meat or Meat Alternate
(quantity of the edible
portion as served):
Lean meat, poultry, or 1 oz........... 1\1/2\ oz...... 1\1/2\ oz..... 2 oz.......... 3 oz.
fish.
Cheese.................... 1 oz........... 1\1/2\ oz...... 1\1/2\ oz..... 2 oz.......... 3 oz.
Large egg................. \1/2\.......... \3/4\.......... \3/4\......... 1............. 1\1/2\.
Cooked dry beans or peas.. \1/4\ cup...... \3/8\ cup...... \3/8\ cup..... \1/2\ cup..... \3/4\ cup.
Peanut butter or other nut 2 Tbsp......... 3 Tbsp......... 3 Tbsp........ 4 Tbsp........ 6 Tbsp.
or seed butters.
Yogurt, plain or flavored, 4 oz. or \1/2\ 6 oz. or \3/4\ 6 oz. or \3/4\ 8 oz. or 1 cup 12 oz. or 1\1/
unsweetened or sweetened. cup. cup. cup. 2\ cup.
The following may be used
to meet no more than 50%
of the requirement and
must be used in
combination with any of
the above:
Peanuts, soynuts, tree \1/2\ oz.=50%.. \3/4\ oz.=50%.. \3/4\ oz.=50%. 1 oz.=50%..... 1\1/2\
nuts, or seeds, as oz.=50%.
listed in program
guidance, or an
equivalent quantity
of any combination of
the above meat/meat
alternate (1oz. of
nuts/seeds = 1oz. of
cooked lean meat,
poultry, or fish.
Vegetable or Fruit: 2 or more \1/2\ cup...... \1/2\ cup...... \1/2\ cup..... \3/4\ cup..... \3/4\ cup.
servings of vegetables or
fruits or both.
Bread or Bread Alternate 5 per week-- 8 per week-- 8 per week-- 8 per week-- 10 per week--
(Servings per week): Must be minimum of \1/ minimum of 1 minimum of 1 minimum of 1 minimum of 1
enriched or whole grain. A 2\ day. per day. per day. per day. per day.
serving is a slice of bread
or an equivalent serving of
biscuits, rolls, etc., or \1/
2\ cup of cooked rice,
macaroni, noodles, other
pasta products or cereal
grains.
----------------------------------------------------------------------------------------------------------------
(d) Lunch components. This section specifies the basic food
components of the school lunch pattern which shall be served as food
items in quantities specified in paragraph (c) of this section.
(1) Milk. Schools shall offer students fluid whole milk and fluid
unflavored lowfat milk. This requirement does not preclude schools from
offering additional kinds of milk. All milk served shall be pasteurized
fluid types of milk which meet State and local standards for such milk;
except that, in the meal pattern for infants under 1 year of age, the
milk shall be breast milk or iron-fortified infant formula. All milk
shall contain vitamins A and D at levels specified by the Food and Drug
Administration and consistent with State and local standards for such
milk. School food authorities that served \3/4\ cup (6 fluid ounces) of
milk to Group III children prior to May 1, 1980, may continue to do so.
Such school food authorities shall retain documentation of the date on
which they began such service and the reasons for adopting this portion
size.
(2) Meat or meat alternate. The quantity of meat or meat alternate
shall be the quantity of the edible portion as served. When the school
determines that the portion size of a meat alternate is excessive, it
shall reduce the portion size of that particular meat alternate and
supplement it with another meat/meat alternate to meet the full
requirement. To be counted as meeting the requirement, the meat or meat
alternate shall be served in a main dish or in a main dish and only one
other menu item. The Department recommends that if schools do not offer
[[Page 36]]
children choices of meat or meat alternates each day, they serve no one
meat alternate or form of meat (e.g., ground, diced, pieces) more than
three times in a single week.
(i) Vegetable protein products and enriched macaroni with fortified
protein defined in appendix A may be used to meet part of the meat or
meat alternate requirement when used as specified in appendix A. An
enriched macaroni product with fortified protein as defined in appendix
A may be used as part of a meat alternate or as a bread alternate, but
not as both food components in the same meal.
(ii) Nuts and seeds and their butters listed in program guidance are
nutritionally comparable to meat or other meat alternates based on
available nutritional data. Acorns, chestnuts, and coconuts shall not be
used as meat alternates due to their low protein and iron content. Nut
and seed meals or flours shall not be used as a meat alternate except as
defined in this part under Appendix A: Alternate Foods for Meals. As
noted in the School Lunch Pattern table of this section, nuts or seeds
may be used to meet no more than one-half of the meat/meat alternate
requirement. Therefore, nuts and seeds must be used in the meal with
another meat/meat alternate to fulfill the requirement.
(iii) Yogurt may be used to meet all or part of the meat/meat
alternate requirement. Yogurt served may be either plain or flavored,
unsweetened or sweetened. Noncommercial and/or nonstandardized yogurt
products, such as frozen yogurt, homemade yogurt, yogurt flavored
products, yogurt bars, yogurt covered fruit and/or nuts or similar
products shall not be credited. Four ounces (weight) or \1/2\ cup
(volume) of yogurt fulfills the equivalent of one ounce of the meat/meat
alternate requirement in the meal pattern.
(3) Vegetable or fruit. Full strength vegetable or fruit juice may
be counted to meet not more than one-half of the vegetable/fruit
requirement. Cooked dry beans or peas may be used as a meat alternate or
as a vegetable, but not as both food components in the same meal.
(4) Bread or bread alternate. (i) All breads or bread alternates
such as bread, biscuits, muffins or rice, macaroni, noodles, other
pastas or cereal grains such as bulgur or corn grits, shall be enriched
or whole grain or made with enriched or whole grain meal or flour.
(ii) Unlike the other component requirements, the bread requirement
is based on minimum daily servings and total servings per week. Schools
shall serve daily at least one-half serving of bread or bread alternate
to children in Group I and at least one serving to children in Groups
II-V. Schools which serve lunch at least 5 days a week shall serve a
total of at least five servings of bread or bread alternate to children
in Group I and eight servings per week to children in Groups II-V.
Schools serving lunch 6 or 7 days per week should increase the weekly
quantity by approximately 20 percent (\1/5\) for each additional day.
When schools operate less than 5 days per week, they may decrease the
weekly quantity by approximately 20 percent (\1/5\) for each day less
than five. The servings for biscuits, rolls, muffins, and other bread
alternates are specified in the Food Buying Guide for Child Nutrition
Programs (PA 1331), an FNS publication.
(e) Offer versus serve. Each school shall offer its students all
five required food items as set forth in the table presented under
paragraph (c). Senior high students shall be permitted to decline up to
two of the five required food items. At the discretion of the school
food authority, students below the senior high level may be permitted to
decline one or two of the required five food items. The price of a
reimbursable lunch shall not be affected if a student declines food
items or accepts smaller portions. State educational agencies shall
define ``senior high.''
(f) Choice. To provide variety and to encourage consumption and
participation, schools should, whenever possible, provide a selection of
foods and types of milk from which children may make choices. When a
school offers a selection of more than one type of lunch or when it
offers a variety of foods and milk for choice within the required lunch
pattern, the school shall offer all children the same selection
regardless of whether the children are eligible for free or reduced
price lunches or pay the
[[Page 37]]
school food authority designated full price. The school may establish
different unit prices for each type of lunch served provided that the
benefits made available to children eligible for free or reduced price
lunches are not affected.
(g) Lunch period. At or about mid-day schools shall serve lunches
which meet the requirements of this part during a period designated as
the lunch period by the school food authority. Such lunch periods shall
occur between 10:00 a.m. and 2:00 p.m., unless otherwise exempted by
FNS. With State approval, schools that serve children 1-5 years old are
encouraged to divide the service of the specified quantities and food
items into two distinct service periods. Such schools may divide the
quantities and/or food items between these service periods in any
combination that they choose.
(h) Infant lunch pattern. Infants under 1 year of age shall be
served an infant lunch as specified in this paragraph when they
participate in the Program. Foods within the infant lunch pattern shall
be of texture and consistency appropriate for the particular age group
being served, and shall be served to the infant during a span of time
consistent with the infant's eating habits. For infants 4 through 7
months of age, solid foods are optional and should be introduced only
when the infant is developmentally ready. Whenever possible the school
should consult with the infant's parent in making the decision to
introduce solid foods. Solid foods should be introduced one at a time on
a gradual basis with the intent of ensuring health and nutritional well-
being. For infants 8 through 11 months of age, the total amount of food
authorized in the meal patterns set forth below must be provided in
order to qualify for reimbursement. Additional foods may be served to
infants 4 months of age and older with the intent of improving their
overall nutrition. Breast milk, provided by the infant's mother may be
served in place of infant formula from birth through 11 months of age.
Either breast milk or iron-fortified infant formula shall be served for
the entire first year. For some breastfed infants who regularly consume
less than the minimum amount of breast milk per feeding, a serving of
less than the minimum amount of breast milk may be offered. In these
situations, additional breast milk must be offered if the infant is
still hungry. Although it is recommended that either breast milk or
iron-fortified infant formula be served for the entire first year, whole
milk may be served beginning at 8 months of age as long as infants are
consuming one-third of their calories as a balanced mixture of cereal,
fruits, vegetables, and other foods in order to ensure adequate sources
of iron and vitamin C. The infant lunch pattern shall contain, as a
minimum, each of the following components in the amounts indicated for
the appropriate age group:
(1) Birth through 3 months--4 to 6 fluid ounces of breast milk or
iron-fortified infant formula.
(2) 4 through 7 months--(i) 4 to 8 fluid ounces of breast milk or
iron-fortified infant formula; (ii) 0 to 3 tablespoons of iron-fortified
dry infant cereal (optional); and (iii) 0 to 3 tablespoons of fruit or
vegetable of appropriate consistency or a combination of both
(optional).
(3) 8 through 11 months--(i) 6 to 8 fluid ounces of breast milk or
iron-fortified infant formula; (ii) 2 to 4 tablespoons of iron-fortified
dry infant cereal and/or 1 to 4 tablespoons meat, fish, poultry, egg
yolk, or cooked dry beans or peas, or \1/2\ to 2 ounces (weight) of
cheese or 1 to 4 ounces (weight or volume) of cottage cheese, cheese
food or cheese spread of appropriate consistency; and (iii) 1 to 4
tablespoons of fruit or vegetable of appropriate consistency or a
combination of both.
[[Page 38]]
Lunch Pattern for Infants
--------------------------------------------------------------------------------------------------------------------------------------------------------
Birth through 3 months 4 through 7 months 8 through 11 months
--------------------------------------------------------------------------------------------------------------------------------------------------------
Lunch............................ 4-6 fl. oz. formula \1\ or breast milk 4-8 fl. oz. formula \1\ or breast milk 6-8 fl. oz. formula \1\ or breast
2,32,3; milk 2,3; and
...................................... 0-3 Tbsp. Infant cereal 1,4; 2-4 Tbsp. infant cereal \1\; and/or
...................................... 0-3 Tbsp. Fruit and/or vegetable \4\ 1-4 Tbsp. meat, fish, poultry, egg
yolk, cooked dry beans, or peas; or
...................................... ...................................... \1/2\-2 oz. cheese;
...................................... ...................................... or 1-4 Tbsp. cottage cheese, cheese
food, or cheese spread; and
...................................... 1-4 Tbsp. fruit and/or vegetable.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Infant formula and dry infant cereal shall be iron-fortified.
\2\ It is recommended that breast milk be served in place of formula from birth through 11 months.
\3\ For some breastfed infants who regularly consume less than the minimum amount of breast milk per feeding, a serving of less than the minimum amount
of breast milk may be offered, with additional breast milk offered if the infant is still hungry.
\4\ A serving of this component shall be optional.
[[Page 39]]
(i) Exceptions. Lunches claimed for reimbursement shall meet the
school lunch pattern requirements specified in paragraphs (c) and (d) of
this section. However, lunches served which accommodate the exceptions
and variations authorized under this paragraph are also reimbursable.
Exceptions and variations are restricted to the following:
(1) Medical or dietary needs. Schools shall make substitutions in
foods listed in this section for students who are considered handicapped
under 7 CFR part 15b and whose handicap restricts their diet. Schools
may also make substitutions for nonhandicapped students who are unable
to consume the regular lunch because of medical or other special dietary
needs. Substitutions shall be made on a case by case basis only when
supported by a statement of the need for substitutions that includes
recommended alternate foods, unless otherwise exempted by FNS. Such
statement shall, in the case of a handicapped student, be signed by a
physician or, in the case of a nonhandicapped student, by a recognized
medical authority.
(2) Ethnic, religious or economic variations. FNS may approve
variations in the food components of the lunch on an experimental or on
a continuing basis in any school where there is evidence that such
variations are nutritionally sound and are necessary to meet ethnic,
religious, or economic needs.
(3) Foreign meal patterns. Schools in American Samoa, Puerto Rico
and the Virgin Islands may serve a starchy vegetable such as yams,
plantains, or sweet potatoes to meet the bread or bread alternate
requirement. For the Commonwealth of the Northern Mariana Islands, FNS
has established a meal pattern which is consistent with local food
consumption patterns and which, given available food supplies and food
service equipment and facilities, provides optimum nutrition consistent
with sound dietary habits for participating children. The State agency
shall attach to and make a part of the written agreement required under
Sec. 210.9, the requirements of that pattern.
(4) Natural disaster. In the event of a natural disaster or other
catastrophe, FNS may temporarily allow schools to serve lunches for
reimbursement that do not meet requirements of this section.
(5) Insufficient milk supply. The inability of a school to obtain a
supply of milk shall not bar it from participation in the Program and is
to be resolved as follows:
(i) If emergency conditions temporarily prevent a school that
normally has a supply of fluid milk from obtaining delivery of such
milk, the State agency may approve the service of lunches during the
emergency period with an available alternate form of milk or without
milk.
(ii) If a school is unable to obtain a supply of fluid whole milk
and fluid unflavored milk containing two percent or less milk fats on a
continuing basis, the State agency may approve the service of either
fluid whole milk or fluid unflavored milk containing two percent or less
milk fats. The Department recommends that the State agency approve for
service the available fluid milk with the lowest fat and sugar content.
In Alaska, Hawaii, American Samoa, Guam, Puerto Rico, the Commonwealth
of the Northern Marianas, and the Virgin Islands, if a sufficient supply
of fluid milk cannot be obtained, ``milk'' shall include reconstituted
or recombined milk, or as otherwise provided under written exception by
FNS.
(iii) If a school is unable to obtain a supply of any type of fluid
milk on a continuing basis, the State agency may approve the service of
lunches without milk if the school uses an equivalent amount of canned,
whole or nonfat dry milk in the preparation of the lunch.
(j) Supplemental food. Eligible schools operating afterschool care
programs may be reimbursed for one meal supplement served to an eligible
child (as defined in Sec. 210.2) per day.
(1) Eligible schools mean schools that:
(i) Operate school lunch programs under the National School Lunch
Act;
(ii) Sponsor afterschool care programs as defined in Sec. 210.2; and
(iii) Were participating in the CACFP as of May 15, 1989.
(2) Meal supplements shall contain two different components from the
following four:
[[Page 40]]
(i) A serving of fluid milk as a beverage, or on cereal, or used in
part for each purpose;
(ii) A serving of meat or meat alternate. Nuts and seeds and their
butters listed in program guidance are nutritionally comparable to meat
or other meat alternates based on available nutritional data. Acorns,
chestnuts, and coconuts are excluded and shall not be used as meat
alternates due to their low protein content. Nut or seed meals or flours
shall not be used as a meat alternate except as defined in this part
under Appendix A: Alternate Foods for Meals;
(iii) A serving of vegetable(s) or fruit(s) or full-strength
vegetable or fruit juice, or an equivalent quantity of any combination
of these foods. Juice may not be served when milk is served as the only
other component;
(iv) A serving of whole-grain or enriched bread; or an equivalent
serving of cornbread, biscuits, rolls, muffins, etc., made with whole-
grain or enriched meal or flour; or a serving of cooked whole-grain or
enriched pasta or noodle products such as macaroni, or cereal grains
such as rice, bulgur, or corn grits; or an equivalent quantity of any
combination of these foods.
(3) Infant supplements shall contain the following:
(i) Birth through 3 months: 4-6 fluid ounces of breast milk or iron-
fortified infant formula.
(ii) 4 through 7 months: 4-6 fluid ounces of breast milk or iron-
fortified infant formula.
(iii) 8 through 11 months: 2-4 fluid ounces of breast milk or iron-
fortified infant formula or full strength fruit juice; 0-\1/2\ slice of
crusty bread or 0-2 cracker type products made from whole-grain or
enriched meal or flour that are suitable for an infant for use as a
finger food when appropriate. To improve the nutrition of participating
children over one year of age, additional foods may be served with the
meal supplements as desired.
(4) The minimum amounts of food components to be served as meal
supplements as set forth in paragraphs (j)(2) and (j)(3) of this section
are as follows. Select two different components from the four listed.
(Juice may not be served when milk is served as the only other
component.)
[[Page 41]]
Supplements for Infants
--------------------------------------------------------------------------------------------------------------------------------------------------------
Birth through 3 months 4 through 7 months 8 through 11 months
--------------------------------------------------------------------------------------------------------------------------------------------------------
Supplement (snack)............... 4-6 fl.oz. formula \1\ or breast milk 4-6 fl. oz. formula 1 or breast milk 2-4 fl. oz. formula 1, breast milk 2,2,32,33, or fruit juice 4;
0-\1/2\ bread 5 or
0-2 crackers. 5
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Infant formula shall be iron-fortified.
\2\ It is recommended that breast milk be served in place of formula from birth through 11 months.
\3\ For some breastfed infants who regularly consume less than the minimum amount of breast milk per feeding, a serving of less than the minimum amount
of breast milk may be offered, with additional breast milk offered if the infant is still hungry.
\4\ Fruit juice shall be full-strength.
\5\ Bread and bread alternates shall be made from whole-grain or enriched meal or flour. A serving of this component shall be optional.
[[Page 42]]
Supplements for Infants
------------------------------------------------------------------------
4 months through 8 months through 11
Birth through 3 months 7 months months
------------------------------------------------------------------------
4-6 fluid ounces formula.\1\ 4-6 fluid ounces 2-4 fluid ounces
formula.\1\ formula,\1\ breast
milk,\4\ whole milk
or fruit juice.\2\ 0-
\1/2\ slice bread or
0-2 crackers
(optional).\3\
------------------------------------------------------------------------
\1\ Shall be iron-fortified infant formula.
\2\ Shall be full-strength fruit juice.
\3\ Shall be from whole-grain or enriched meal or flour.
\4\ Breast milk provided by the infant's mother may be served in place
of formula from birth through 11 months. Meals containing only breast
milk are not reimbursable. Meals containing breast milk served to
infants 4 months or older may be claimed when the other meal
component(s) is supplied by the child care facility.
[53 FR 25308, July 6, 1988; 53 FR 48632, Dec. 2, 1988, as amended at 55
FR 18858, May 7, 1990; 56 FR 32941, July 17, 1991; 58 FR 42488, Aug. 10,
1993. Redesignated at 60 FR 31208, June 13, 1995, as amended at 60 FR
31214, June 13, 1995; 61 FR 37671, July 19, 1996; 62 FR 10190, Mar. 6,
1997; 64 FR 61773, Nov. 15, 1999]
Sec. 210.11 Competitive food services.
(a) Definitions. For the purpose of this section:
(1) Competitive foods means any foods sold in competition with the
Program to children in food service areas during the lunch periods.
(2) Food of minimal nutritional value means: (i) In the case of
artificially sweetened foods, a food which provides less than five
percent of the Reference Daily Intakes (RDI) for each of eight specified
nutrients per serving; and (ii) in the case of all other foods, a food
which provides less than five percent of the RDI for each of eight
specified nutrients per 100 calories and less than five percent of the
RDI for each of eight specified nutrients per serving. The eight
nutrients to be assessed for this purpose are--protein, vitamin A,
vitamin C, niacin, riboflavin, thiamine, calcium, and iron. All
categories of food of minimal nutritional value and petitioning
requirements for changing the categories are listed in appendix B of
this part.
(b) General. State agencies and school food authorities shall
establish such rules or regulations as are necessary to control the sale
of foods in competition with lunches served under the Program. Such
rules or regulations shall prohibit the sale of foods of minimal
nutritional value, as listed in appendix B of this part, in the food
service areas during the lunch periods. The sale of other competitive
foods may, at the discretion of the State agency and school food
authority, be allowed in the food service area during the lunch period
only if all income from the sale of such foods accrues to the benefit of
the nonprofit school food service or the school or student organizations
approved by the school. State agencies and school food authorities may
impose additional restrictions on the sale of and income from all foods
sold at any time throughout schools participating in the Program.
[53 FR 29147, Aug. 2, 1988, as amended at 59 FR 23614, May 6, 1994]
Sec. 210.12 Student, parent and community involvement.
(a) General. School food authorities shall promote activities to
involve students and parents in the Program. Such activities may include
menu planning, enhancement of the eating environment, Program promotion,
and related student-community support activities. School food
authorities are encouraged to use the school food service program to
teach students about good nutrition practices and to involve the school
faculty and the general community in activities to enhance the Program.
(b) Food service management companies. School food authorities
contracting with a food service management company shall comply with the
provisions of Sec. 210.16(a) regarding the establishment of an advisory
board of parents, teachers and students.
(c) Residential child care institutions. Residential child care
institutions shall comply with the provisions of this section, to the
extent possible.
[[Page 43]]
Sec. 210.13 Facilities management.
(a) Health standards. The school food authority shall ensure that
food storage, preparation and service is in accordance with the
sanitation and health standards established under State and local law
and regulations.
(b) Food safety inspections.--(1) In general. Except as provided in
paragraph (b)(2) of this section, schools shall, at least once during
each school year, obtain a food safety inspection conducted by a State
or local governmental agency responsible for food safety inspections.
(2) Exception. Paragraph (b)(1) of this section shall not apply to a
school if a food safety inspection of the school is required by a State
or local governmental agency responsible for food safety inspections.
(c) Storage. The school food authority shall ensure that the
necessary facilities for storage, preparation and service of food are
maintained. Facilities for the handling, storage, and distribution of
purchased and donated foods shall be such as to properly safeguard
against theft, spoilage and other loss.
[54 FR 29147, Aug. 2, 1988, as amended at 64 FR 50740, Sept. 20, 1999]
Sec. 210.14 Resource management.
(a) Nonprofit school food service. School food authorities shall
maintain a nonprofit school food service. Revenues received by the
nonprofit school food service are to be used only for the operation or
improvement of such food service, except that, such revenues shall not
be used to purchase land or buildings, unless otherwise approved by FNS,
or to construct buildings. Expenditures of nonprofit school food service
revenues shall be in accordance with the financial management system
established by the State agency under Sec. 210.19(a) of this part.
School food authorities may use facilities, equipment, and personnel
supported with nonprofit school food revenues to support a nonprofit
nutrition program for the elderly, including a program funded under the
Older Americans Act of 1965 (42 U.S.C. 3001 et seq.).
(b) Net cash resources. The school food authority shall limit its
net cash resources to an amount that does not exceed 3 months average
expenditures for its nonprofit school food service or such other amount
as may be approved by the State agency in accordance with
Sec. 210.19(a).
(c) Financial assurances. The school food authority shall meet the
requirements of the State agency for compliance with Sec. 210.19(a)
including any separation of records of nonprofit school food service
from records of any other food service which may be operated by the
school food authority as provided in paragraph (a) of this section.
(d) Use of donated foods. The school food authority shall enter into
an agreement with the distributing agency to receive donated foods as
required by part 250 of this chapter. In addition, the school food
authority shall accept and use, in as large quantities as may be
efficiently utilized in its nonprofit school food service, such foods as
may be offered as a donation by the Department.
[53 FR 29147, Aug. 2, 1988, as amended at 60 FR 31215, June 13, 1995]
Sec. 210.15 Reporting and recordkeeping.
(a) Reporting summary. Participating school food authorities are
required to submit forms and reports to the State agency or the
distributing agency, as appropriate, to demonstrate compliance with
Program requirements. These reports include, but are not limited to:
(1) A Claim for Reimbursement and, for the month of October and as
otherwise specified by the State agency, supporting data as specified in
accordance with Sec. 210.8 of this part;
(2) An application and agreement for Program operations between the
school food authority and the State agency, and a Free and Reduced Price
Policy Statement as required under Sec. 210.9;
(3) A written response to reviews pertaining to corrective action
taken for Program deficiencies;
(4) A commodity school's preference whether to receive part of its
donated food allocation in cash for processing and handling of donated
foods as required under Sec. 210.19(b);
(5) A written response to audit findings pertaining to the school
food authority's operation as required under Sec. 210.22; and
[[Page 44]]
(6) Information on civil rights complaints, if any, and their
resolution as required under Sec. 210.23.
(b) Recordkeeping summary. In order to participate in the Program, a
school food authority shall maintain records to demonstrate compliance
with Program requirements. These records include but are not limited to:
(1) Documentation of participation data by school in support of the
Claim for Reimbursement and data used in the claims review process, as
required under Sec. 210.8(a), (b), and (c) of this part;
(2) Production and menu records as required under Sec. 210.10a and
production and menu records and, if appropriate, nutrition analysis
records as required under Sec. 210.10, whichever is applicable.
(3) Participation records to demonstrate positive action toward
providing one lunch per child per day as required under
Sec. 210.10(a)(2) or Sec. 210.10a(b), whichever is applicable;
(4) Currently approved and denied applications for free and reduced
price lunches and a description of the verification activities,
including verified applications, and any accompanying source
documentation in accordance with 7 CFR 245.6a of this Title.
[53 FR 29147, Aug. 2, 1988, as amended at 54 FR 12582, Mar. 28, 1989; 56
FR 32941, July 17, 1991; 60 FR 31215, June 13, 1995]
Sec. 210.16 Food service management companies.
(a) General. Any school food authority (including a State agency
acting in the capacity of a school food authority) may contract with a
food service management company to manage its food service operation in
one or more of its schools. However, no school or school food authority
may contract with a food service management company to operate an a la
carte food service unless the company agrees to offer free, reduced
price and paid reimbursable lunches to all eligible children. Any school
food authority that employs a food service management company in the
operation of its nonprofit school food service shall:
(1) Adhere to the procurement standards specified in Sec. 210.21
when contracting with the food service management company;
(2) Ensure that the food service operation is in conformance with
the school food authority's agreement under the Program;
(3) Monitor the food service operation through periodic on-site
visits;
(4) Retain control of the quality, extent, and general nature of its
food service, and the prices to be charged the children for meals;
(5) Retain signature authority on the State agency-school food
authority agreement, free and reduced price policy statement and claims;
(6) Ensure that all federally donated foods received by the school
food authority and made available to the food service management company
accrue only to the benefit of the school food authority's nonprofit
school food service and are fully utilized therein;
(7) Maintain applicable health certification and assure that all
State and local regulations are being met by a food service management
company preparing or serving meals at a school food authority facility;
and
(8) Establish an advisory board composed of parents, teachers, and
students to assist in menu planning.
(b) Invitation to bid. In addition to adhering to the procurement
standards under Sec. 210.21, school food authorities contracting with
food service management companies shall ensure that:
(1) The invitation to bid or request for proposal contains a 21-day
cycle menu developed in accordance with the provisions of Sec. 210.10 or
Sec. 210.10a, whichever is applicable, to be used as a standard for the
purpose of basing bids or estimating average cost per meal. If a school
food authority has no capability to prepare a cycle menu, it may, with
State agency approval, request that a 21-day cycle menu developed in
accordance with the provisions of Sec. 210.10 or Sec. 210.10a, whichever
is applicable, be developed and submitted by each food service
management company which intends to submit a bid or proposal to the
school food authority. The food service management company must adhere
to the cycle for the first 21 days of meal service. Changes thereafter
may be made with the approval of the school food authority.
[[Page 45]]
(2) Any invitation to bid or request for proposal indicate that
nonperformance subjects the food service management company to specified
sanctions in instances where the food service management company
violates or breaches contract terms. The school food authority shall
indicate these sanctions in accordance with the procurement provisions
stated in Sec. 210.21.
(c) Contracts. Contracts that permit all income and expenses to
accrue to the food service management company and ``cost-plus-a-
percentage-of-cost'' and ``cost-plus-a-percentage-of-income'' contracts
are prohibited. Contracts that provide for fixed fees such as those that
provide for management fees established on a per meal basis are allowed.
Contractual agreements with food service management companies shall
include provisions which ensure that the requirements of this section
are met. Such agreements shall also include the following:
(1) The food service management company shall maintain such records
as the school food authority will need to support its Claim for
Reimbursement under this part, and shall, at a minimum, report claim
information to the school food authority promptly at the end of each
month. Such records shall be made available to the school food
authority, upon request, and shall be retained in accordance with
Sec. 210.23(c).
(2) The food service management company shall have State or local
health certification for any facility outside the school in which it
proposes to prepare meals and the food service management company shall
maintain this health certification for the duration of the contract.
(3) No payment is to be made for meals that are spoiled or
unwholesome at time of delivery, do not meet detailed specifications as
developed by the school food authority for each food component specified
in Sec. 210.10, or do not otherwise meet the requirements of the
contract. Specifications shall cover items such a grade, purchase units,
style, condition, weight, ingredients, formulations, and delivery time.
(d) Duration of contract. The contract between a school food
authority and food service management company shall be a of a duration
of no longer than 1 year; and options for the yearly renewal of a
contract signed after February 16, 1988, may not exceed 4 additional
years. All contracts shall include a termination clause whereby either
party may cancel for cause with 60-day notification.
[53 FR 29147, Aug. 2, 1988, as amended at 60 FR 31215, June 13, 1995]
Subpart D--Requirements for State Agency Participation
Sec. 210.17 Matching Federal funds.
(a) State revenue matching. For each school year, the amount of
State revenues appropriated or used specifically by the State for
program purposes shall not be less than 30 percent of the funds received
by such State under section 4 of the National School Lunch Act during
the school year beginning July 1, 1980; provided that, the State
revenues derived from the operation of such programs and State revenues
expended for salaries and administrative expenses of such programs at
the State level are not considered in this computation. However, if the
per capita income of any State is less than the per capita income of the
United States, the matching requirements so computed shall be decreased
by the percentage by which the State per capita income is below the per
capita income of the United States.
(b) Private school exemption. No State in which the State agency is
prohibited by law from disbursing State appropriated funds to nonpublic
schools shall be required to match general cash assistance funds
expended for meals served in such schools, or to disburse to such
schools any of the State revenues required to meet the requirements of
paragraph (a) of this section. Furthermore, the requirements of this
section do not apply to schools in which the Program is administered by
a FNSRO.
(c) Territorial waiver. American Samoa and the Commonwealth of the
Northern Mariana Islands shall be exempted from the matching
requirements of paragraph (a) of this section if their respective
matching requirements are under $100,000.
[[Page 46]]
(d) Applicable revenues. The following State revenues, appropriated
or used specifically for program purposes which are expended for any
school year shall be eligible for meeting the applicable percentage of
the matching requirements prescribed in paragraph (a) of this section
for that school year:
(1) State revenues disbursed by the State agency to school food
authorities for program purposes, including revenue disbursed to
nonprofit private schools where the State administers the program in
such schools;
(2) State revenues made available to school food authorities and
transferred by the school food authorities to the nonprofit school food
service accounts or otherwise expended by the school food authorities in
connection with the nonprofit school food service program; and
(3) State revenues used to finance the costs (other than State
salaries or other State level administrative costs) of the nonprofit
school food service program, i.e.:
(i) Local program supervision;
(ii) Operating the program in participating schools; and
(iii) The intrastate distribution of foods donated under part 250 of
this chapter to schools participating in the program.
(e) Distribution of matching revenues. All State revenues made
available under paragraph (a) of this section are to be disbursed to
school food authorities participating in the Program, except as provided
for under paragraph (b) of this section. Distribution of matching
revenues may be made with respect to a class of school food authorities
as well as with respect to individual school food authorities.
(f) Failure to match. If, in any school year, a State fails to meet
the State revenue matching requirement, as prescribed in paragraph (a)
of this section, the general cash assistance funds utilized by the State
during that school year shall be subject to recall by and repayment to
FNS.
(g) Reports. Within 120 days after the end of each school year, each
State agency shall submit an Annual Report of Revenues (FNS-13) to FNS.
This report identifies the State revenues to be counted toward the State
revenue matching requirements specified in paragraph (a) of this
section.
(h) Accounting system. The State agency shall establish or cause to
be established a system whereby all expended State revenues counted in
meeting the matching requirements prescribed in paragraph (a) of this
section are properly documented and accounted for.
Sec. 210.18 Administrative reviews.
(a) Implementation dates. For the school year beginning July 1,
1992, each State agency shall conduct administrative reviews as
prescribed under this section. However, FNS will approve a State
agency's written request if FNS determines that the State agency has
demonstrated good cause to delay implementation of the provisions
specified under this section to January 1, 1993. At State agency
discretion, State agencies may begin implementation of the provisions of
this section on August 16, 1991. FNS review responsibilities are
specified under Sec. 210.29 of this part.
(b) Definitions. The following definitions are provided in order to
clarify State agency administrative review requirements:
(1) Administrative reviews means the initial comprehensive on-site
evaluation of all school food authorities participating in the Program
in accordance with the provisions of this section. The term
``administrative review'' is used to reflect a review of both critical
and general areas in accordance with paragraphs (g) and (h) of this
section, and includes other areas of Program operations determined by
the State agency to be important to Program performance.
(2) Critical areas means the following two performance standards
described in detail in paragraph (g) of this section which serve as
measures of compliance with Program regulations:
(i) Performance Standard 1--Certification/Counting/Claiming--All
free, reduced price and paid lunches claimed for reimbursement are
served only to children eligible for free, reduced price and paid
lunches, respectively; and counted, recorded, consolidated and reported
through a system which consistently yields correct claims.
[[Page 47]]
(ii) Performance Standard 2--Components--Lunches claimed for
reimbursement within the school food authority contain food items/
components as required by Program regulations.
(3) Documented corrective action means written notification required
of the school food authority to certify that the corrective action
required for each violation has been completed and to notify the State
agency of the dates of completion. Documented corrective action may be
provided at the time of the review or may be submitted to the State
agency within specified timeframes.
(4) Follow-up reviews means any visit(s) to the school food
authority subsequent to the administrative review to ensure corrective
actions are taken.
(5) General areas means the areas of review specified in paragraph
(h) of this section.
(6) Large school food authority means, in any State:
(i) All school food authorities that participate in the Program and
have enrollments of 40,000 children or more each; or
(ii) If there are less than two school food authorities with
enrollments of 40,000 or more, the two largest school food authorities
that participate in the Program and have enrollments of 2,000 children
or more each.
(7) Participation factor means the percentages of children approved
by the school for free lunches, reduced price lunches, and paid lunches,
respectively, who are participating in the Program. The free
participation factor is derived by dividing the number of free lunches
claimed for any given period by the product of the number of children
approved for free lunches for the same period times the operating days
in that period. A similar computation is used to determine the reduced
price and paid participation factors. The number of children approved
for paid lunches is derived by subtracting the number of children
approved for free and reduced price lunches for any given period from
the total number of children enrolled in the reviewed school for the
same period of time, if available. If such enrollment figures are not
available, the most recent total number of children enrolled shall be
used. If school food authority participation factors are unavailable or
unreliable, State-wide data shall be employed.
(8) Review period means the period of time covered by the
administrative review or follow-up review. The review period is
specified in paragraph (f)(2) of this section.
(9) Review threshold means the degree of error in a critical area of
review which, if exceeded during an administrative review or follow-up
review of a school food authority, may trigger a follow-up review of
that school food authority.
(10) Small school food authority means, in any State, a school food
authority that participates in the Program and is not a large school
food authority, as defined in this section.
(c) Timing of reviews. The first year of the first 5-year review
cycle began on July 1, 1992, or as otherwise authorized under paragraph
(a) of this section and shall end on June 30, 1994. For each State
agency, the first 5-year review cycle shall end on June 30, 1998.
Administrative reviews and follow-up reviews shall be conducted as
follows:
(1) Administrative reviews. At a minimum, State agencies shall
conduct administrative reviews of all school food authorities at least
once during each 5-year review cycle; provided that each school food
authority is reviewed at least once every 6 years. The on-site portion
of the administrative review shall be completed during the school year
in which the review was begun.
(2) Expanded review cycle. State agencies are encouraged to conduct
administrative reviews of large school food authorities and of any
school food authorities which may benefit from a more frequent interval
than the minimum 5-year cycle required in paragraph (c)(1) of this
section.
(3) Exceptions. FNS may, on an individual school food authority
basis, approve written requests for 1-year extensions to the 6-year
review interval specified in paragraph (c)(1) of this section if FNS
determines this requirement conflicts with efficient State agency
management of the Program.
(4) Follow-up reviews. The State agency is encouraged to conduct
first follow-up reviews in the same school year
[[Page 48]]
as the administrative review; but in no event shall first follow-up
reviews be conducted later than December 31 of the school year following
the administrative review. Subsequent follow-up reviews shall be
scheduled in accordance with paragraph (i)(5) of this section.
(d) Scheduling school food authorities. The State agency shall use
its own criteria to schedule school food authorities for administrative
reviews; provided that the requirements of paragraph (c) of this section
are met. State agencies are encouraged to take into consideration the
findings of the claims review process required under Sec. 210.8(b)(2) of
this part in the selection of school food authorities.
(1) Schedule of reviews. To ensure no unintended overlap occurs, the
State agency shall inform FNS of the anticipated schedule of school food
authority reviews upon request.
(2) Reporting follow-up review activity. At such time as the State
agency determines that a follow-up review is needed, the State agency
shall notify FNS of the names of those large school food authorities
exceeding any one of the critical area review thresholds specified in
paragraph (i) of this section.
(3) Exceptions. In any school year in which FNS or OIG conducts a
review or investigation of a school food authority in accordance with
Sec. 210.19(a)(5) of this part, the State agency shall, unless otherwise
authorized by FNS, delay conduct of a scheduled administrative review
until the following school year. The State agency shall document any
exception authorized under this paragraph.
(e) Number of schools to review. The State agency is encouraged to
review all schools meeting the school selection criteria specified in
paragraph (e)(1) of this section. At a minimum, the State agency shall
review the number of schools specified in paragraph (e)(1) of this
section and shall select the schools to be reviewed on the basis of the
school selection criteria specified in paragraph (e)(2) of this section.
(1) Minimum number of schools. Except for residential child care
institutions, the State agency shall review all schools with a free
average daily participation of 100 or more and a free participation
factor of 100 percent or more. In no event shall the State agency review
less than the minimum number of schools illustrated in table A:
Table A
------------------------------------------------------------------------
Minimum no. of
No. of schools in the school food authority schools to be
reviewed
------------------------------------------------------------------------
1 to 5............................................. 1
6 to 10............................................ 2
11 to 20............................................ 3
21 to 40............................................ 4
41 to 60............................................ 6
61 to 80............................................ 8
81 to 100........................................... 10
101 or more.......................................... \1\ 12
------------------------------------------------------------------------
\1\ Twelve plus 5 percent of the number of schools over 100. Fractions
shall be rounded to the nearest whole number.
(2) School selection criteria.
(i) Selection of additional schools to meet the minimum number of
schools required under paragraph (e)(1) of this section, shall be based
on the following criteria:
(A) Elementary schools with a free average daily participation of
100 or more and a free participation factor of 97 percent or more;
(B) Secondary schools with a free average daily participation of 100
or more and a free participation factor of 77 percent or more; and
(C) Combination schools with a free average daily participation of
100 or more and a free participation factor of 87 percent or more. A
combination school means a school with a mixture of elementary and
secondary grades.
(ii) When the number of schools selected on the basis of the
criteria established in paragraph (A) through paragraph (C) of this
paragraph are not sufficient to meet the minimum number of schools
required under paragraph (e)(1) of this section, the schools selected
for review shall be selected on the basis of State agency criteria which
may include low participation schools, recommendations from a food
service director based on findings from the on-site visits or the claims
review process required under Sec. 210.8(a) of this part; or any school
in which the daily lunch counts appear questionable, e.g., identical or
very similar claiming patterns, and/or large changes in free lunch
counts.
[[Page 49]]
(3) Pervasive problems. If the State agency review finds pervasive
problems in a school food authority, FNS may authorize the State agency
to cease review activities prior to reviewing the required number of
schools under paragraph (e)(1) of this section. Where FNS authorizes the
State agency to cease review activity, FNS may either conduct the review
activity itself or refer the school food authority to OIG.
(f) Scope of review. During the course of an administrative review,
each State agency shall monitor compliance with the critical and general
areas identified in paragraphs (g) and (h) of this section.
(1) Review form. State agencies shall use the administrative review
form prescribed by FNS for the critical areas of review specified in
paragraph (g) of this section. State agencies may use their own
administrative review form for the general areas of review specified in
paragraph (h) of this section.
(2) Review period.
(i) The review period for administrative reviews and follow-up
reviews shall cover, at a minimum, the most recent month for which a
Claim for Reimbursement was submitted; provided that such Claim for
Reimbursement covers at least 10 operating days.
(ii) Subject to FNS approval, the State agency may conduct a review
early in the school year, prior to the submission of a Claim for
Reimbursement. In such cases, the review period shall be the prior month
of operation in the current school year, provided that such month
includes at least 10 operating days.
(3) Audit findings. To prevent duplication of effort, the State
agency may use any recent and currently applicable findings from
Federally-required audit activity or from any State-imposed audit
requirements. Such findings may be used only insofar as they pertain to
the reviewed school(s) or the overall operation of the school food
authority and they are relevant to the review period. The State agency
shall document the source and the date of the audit.
(g) Critical areas of review. The performance standards listed in
this paragraph are deemed critical since compliance in these areas is
directly linked to the service of a reimbursable lunch.
(1) Performance Standard 1 (All free, reduced price and paid lunches
claimed for reimbursement are served only to children eligible for free,
reduced price and paid lunches, respectively; and are counted, recorded,
consolidated and reported through a system which consistently yields
correct claims.) The State agency shall determine that the free and
reduced price eligibility determinations are correct. In addition, the
State agency shall determine that for each day of operation for the
review period, the number of free, reduced price and paid lunches
claimed for each reviewed school is not more than the number of lunches
served to children eligible for free, reduced price and paid lunches,
respectively, in those schools for the review period. The State agency
shall also determine that a lunch counting system is being used which
accurately counts, records, consolidates and reports the reimbursable
lunches served, by type.
(i) For each school reviewed, the State agency shall:
(A) Determine the number of children eligible for free, reduced
price and paid lunches, by type, for the review period. To make this
determination:
(1) The State agency shall:
(i) Review all approved free and reduced price applications for
children in the reviewed schools back to the beginning of the school
year to determine whether each child's application is complete and
correctly approved in accordance with all applicable provisions of 7 CFR
part 245; or
(ii) Review all approved free and reduced price applications
effective for the review period for children in the reviewed schools; or
(iii) Review all approved free and reduced price applications
effective on the day(s) the review is conducted for children in the
reviewed schools.
(2) In lieu of reviewing all of the free and reduced price
applications as required under paragraph (g)(1)(i)(A)(1) of this
section, the State agency may review a statistically valid sample of
those applications. If the State agency chooses to review a
statistically valid sample of applications, the State agency shall
ensure that the sample size is large enough so that there is a 95
percent chance that the actual error rate for all applications is not
less than 2
[[Page 50]]
percentage points less than the error rate found in the sample (i.e.,
the lower bound of the one-sided 95 percent confidence interval is no
more than 2 percentage points less than the point estimate). In
addition, the State agency shall determine the need for follow-up
reviews and base fiscal action upon the error rate found in the sample.
(3) Evaluate whether the previous year's eligibility determinations
are used after 30 operating days following the first day of school, or
as otherwise established by the State agency; provided that the State
agency-developed timeframe does not exceed the 30 operating day limit.
(4) In the case where children are determined eligible for free
lunches based on documentation from the local food stamp, Food
Distribution Program on Indian Reservations (FDPIR) or Temporary
Assistance for Needy Families (TANF) office which certifies that the
children are currently members of households receiving benefits under
the Food Stamp Program, FDPIR or TANF, determine that the certification
from the Food Stamp Program, FDPIR or TANF is official; all the
information required under Sec. 245.6 of this part is complete; and such
children were enrolled in the school under review during the review
period.
(B) Evaluate the system for issuing benefits and updating
eligibility status by validating the mechanism(s) the reviewed school
uses to provide benefits to eligible children, e.g., master list. The
State agency shall determine whether the system is adequate and, within
the timeframes established in Sec. 210.7(c)(1)(ii)(B), reflects changes
due to verification findings, transfers, reported changes in household
size or income, or from a household's decision to decline school lunch
benefits or any notification from the household that it is no longer
certified to receive food stamp, Food Distribution Program for
Households on Indian Reservations (FDPIR) or Temporary Assistance for
Needy Families (TANF) benefits.
(C) Determine whether the lunch counting system yields correct
claims. At a minimum, the State agency shall determine whether:
(1) The daily lunch counts, by type, for the review period are more
than the product of the number of children determined by the school/
school food authority to be eligible for free, reduced price, and paid
lunches for the review period times an attendance factor. If the lunch
count, for any type, appears questionable or significantly exceeds the
product of the number of eligibles, for that type, times an attendance
factor, documentation showing good cause must be available for review by
the State agency.
(2) Each type of food service line provides accurate point of
service lunch counts, by type, and those lunch counts are correctly
counted and recorded. If an alternative counting system is employed (in
accordance with Sec. 210.7(c)(2)), the State agency shall ensure that it
provides accurate counts of reimbursable lunches, by type, and is
correctly implemented as approved by the State agency.
(3) All lunches are correctly counted, recorded, consolidated and
reported for the day they are served.
(ii) For each school food authority reviewed, the State agency shall
review lunch count records to ensure that the lunch counts submitted by
each reviewed school are correctly consolidated, recorded, and reported
by the school food authority on the Claim for Reimbursement.
(2) Performance Standard 2 (Lunches claimed for reimbursement within
the school food authority contain food items/components as required by
Program regulations.) For each school reviewed, the State agency shall:
(i) For the day of the review, observe the serving line(s) to
determine whether all required food items/components are offered.
(ii) For the day of the review, observe a significant number of the
Program lunches counted at the point of service for each type of serving
line, to determine whether those lunches contain the required number of
food items/components.
(iii) Review menu records for the review period to determine whether
all required food items/components have been offered.
(h) General areas of review. The general areas listed in this
paragraph reflect major Program requirements. The general areas of
review shall include,
[[Page 51]]
but are not limited to, the following areas:
(1) Free and reduced price process. In the course of the review of
each school food authority, the State agency shall:
(i) Review the implementation of the free and reduced price policy
statement to ensure it is implemented as approved.
(ii) Evaluate whether the required minimum number of applications
are verified with respect to the selection method used.
(iii) Determine that applications for verification are selected
through random or focused sampling in accordance with the provisions of
Sec. 245.6a of this title and FNS Instructions, and that no
discrimination exists in the selection process.
(iv) Establish that verification is completed by December 15. If the
administrative review occurs prior to the December 15 deadline, the
State agency shall evaluate the verification activities that have
occurred to date and assess whether these activities represent a good
faith effort that will result in compliance with the requirements of
Sec. 245.6a of this title.
(v) Confirm that the verification process is complete for each
application verified by or on behalf of the reviewed schools.
Verification is considered complete either when a child's eligibility
for the level of benefits for which he or she was approved is confirmed,
changed to a higher level of benefit, or a letter of adverse action has
been sent.
(vi) Ensure that verification records are maintained as required by
Sec. 245.6a(c) of this title.
(vii) Determine that, for each reviewed school, the lunch count
system does not overtly identify children eligible for free and reduced
price lunches.
(viii) Review a representative sample of denied applications to
evaluate whether the determining official correctly denied applicants
for free and reduced price lunches.
(2) Food quantities. For each school reviewed, the State agency
shall observe a significant number of Program lunches counted at the
point of service for each type of serving line to determine whether
those lunches appear to provide food items/components in the quantities
required under Sec. 210.10 or Sec. 210.10a, in whichever is applicable.
If visual observation suggests that quantities are insufficient, the
State agency shall require the reviewed schools to provide documentation
demonstrating that the required amounts of food were available for
service for each day of the review period.
(3) Civil rights. The State agency shall examine the school food
authority's compliance with the civil rights provisions specified in
Sec. 210.23(b) of this part.
(4) Monitoring responsibilities. The State agency shall ensure that
the school food authority conducts on-site reviews in accordance with
Sec. 210.8(a)(1) of this part and monitors claims in accordance with
Sec. 210.8(a)(2) and (a)(3) of this part.
(5) Reporting and recordkeeping. The State agency shall determine
that the school food authority submits reports and maintains records as
required under 7 CFR parts 210 and 245.
(i) Follow-up reviews. All school food authorities found to have a
critical area violation in excess of any one of the review thresholds
specified in this paragraph are subject to follow-up reviews. State
agencies shall notify FNS of the names of large school food authorities
exceeding critical area review thresholds in accordance with paragraph
(d)(2) of this section. The State agency shall conduct a first follow-up
review of any large school food authority found on an administrative
review to have critical area violations in excess of any one of the
review thresholds. State agencies shall also conduct a first follow-up
review of at least 25 percent of the small school food authorities found
on a review to have critical area violations in excess of any one of the
review thresholds. State agencies shall conduct additional follow-up
reviews of any school food authority which has a critical area violation
exceeding a review threshold on the first follow-up or any subsequent
follow-up review regardless of whether such review is conducted by FNS
or the State agency.
(1) Selection of small school food authorities. In determining which
small school food authorities to include in the follow-up review sample,
State agencies shall select those school food
[[Page 52]]
authorities which have the most serious problems, including, but not
limited to, systemic accountability problems, large overclaims,
significant lunch pattern violations, etc.
(2) Selection of schools.
(i) If the critical area violation(s) responsible for follow-up
review activity are limited to school food authority level problems
(e.g. centralized application processing or centralized kitchen), the
State agency may limit the follow-up review to the school food authority
level.
(ii) If the critical area violation(s) responsible for follow-up
review activity were identified in the review of a school(s), then State
agencies shall review at least the minimum number of schools required
under paragraph (e)(1) of this section. State agencies shall meet the
minimum number of schools requirement by selecting those schools found,
on a previous review, to have significant critical area violations. If
any additional schools must be selected to meet the minimum required
number, the State agency shall select from those schools which meet
State agency-developed criteria identified under paragraph (e)(2)(ii) of
this section.
(3) Review thresholds. The review thresholds apply only to the
critical areas of review and are designed to limit follow-up reviews to
those school food authorities with serious problems. The provisions of
paragraph (i) of this section apply when:
(i) For Performance Standard 1--
(A) A number of the reviewed schools in a school food authority, as
specified in Table B, have an inadequate system for certification,
issuing benefits or updating eligibility status; or for counting,
recording, consolidating or reporting lunches, by type; or
(B) The school food authority has an inadequate system for
consolidating lunch counts, by type, or for reporting claims; or, if
applicable, for certification, issuing benefits or updating eligibility
status.
At the school and school food authority level, a system for
certification, issuing benefits or updating eligibility status is
inadequate if 10 percent or more (but not less than 100 lunches) of the
free and reduced price lunches claimed for the review period (for any
school reviewed) are claimed incorrectly due to errors of certification,
benefit issuance or updating of eligibility status.
Table B
------------------------------------------------------------------------
Number of
schools
Number of schools reviewed violating
performance
standard 1
------------------------------------------------------------------------
1 to 5.................................................... 1
6 to 10................................................... 2
11 to 20.................................................. 3
21 to 30.................................................. 4
31 to 40.................................................. 5
41 to 50.................................................. 6
51 to 60.................................................. 7
61 to 70.................................................. 8
71 to 80.................................................. 9
81 to 90.................................................. 10
91 to 100................................................. 11
101 or more............................................... 11*
------------------------------------------------------------------------
* 11 plus the number identified above for the appropriate increment.
(ii) For Performance Standard 2-10 percent or more of the total
number of Program lunches observed in a school food authority are
missing one or more of the required food items/components.
(4) Scope of follow-up reviews. On any follow-up review, the State
agency is encouraged to review all of the critical and general areas of
review specified in paragraph (g) and (h) of this section for those
schools which were not reviewed during the administrative review. At a
minimum, the State agency shall:
(i) For each school selected for review (or for the school food
authority, as applicable,) review the critical areas for which the
review thresholds were exceeded by the school food authority on a
previous review;
(ii) Determine whether the school food authority has satisfactorily
completed the corrective actions in accordance with paragraph (k) of
this section required for both critical and general areas within the
timeframes established by the State agency;
(iii) Evaluate whether these corrective actions resolved the
problem(s); and
(iv) If the State agency did not evaluate the certification, count
and milk/meal service procedures for the School Breakfast Program (7 CFR
part 220) and/or the Special Milk Program for Children (7 CFR part 215)
or offering meal supplements in after hour care programs (7 CFR part
210) in those
[[Page 53]]
schools selected for the administrative review and participating in
those Programs, the State agency shall do so for those schools selected
for the first follow-up review.
(5) Critical area violations identified in a follow-up review.
Critical area violations identified on a follow-up review shall be
addressed as follows:
(i) If, during a follow-up review, the State agency determines, that
corrective actions have not been satisfactorily completed in accordance
with the documented corrective action, the State agency shall: require
the school food authority to resolve the problems and to submit
documented corrective action to the State agency ; take fiscal action
for critical area violations as specified in paragraph (m) of this
section; and withhold Program payments in accordance with paragraph (l)
of this section, until such time as a follow-up review, requested by the
school food authority, indicates the problem has been corrected. If the
State agency determines that the corrective actions have been completed
as specified in the documented corrective action, but those corrective
actions do not effectively resolve the problem, the State agency shall
follow the requirements for new critical area violations specified in
paragraphs (i)(5)(ii) and (iii) of this section.
(ii) If new critical area violations are observed that exceed a
review threshold, the State agency shall: Require the school food
authority to resolve the problems and to submit documented corrective
action to the State agency; take fiscal action as specified in paragraph
(m) of this section; and conduct a follow-up review within 6 operating
months of the first follow-up review.
(iii) If new critical area violations are observed which do not
exceed review thresholds, the State agency shall: Require the school
food authority to resolve the problem and to submit documented
corrective action to the State agency within specified timeframes; and
take fiscal action in accordance with paragraph (m) of this section. If
adequate documented corrective action is not received within those
timeframes, the State agency shall withhold Program payments in
accordance with paragraph (l) of this section, until such time as
adequate documented corrective action is received.
(6) General area violations identified in a follow-up review.
General area violations identified in a follow-up review shall be
addressed as follows:
(i) If, during a follow-up review, the State agency determines that
corrective actions have not been taken in accordance with the documented
corrective action, the State agency shall withhold Program payments in
accordance with paragraph (l) of this section, until such time as the
State agency receives adequate documented corrective action.
(ii) If the State agency determines that the corrective actions
taken did not effectively resolve the problem, or if new general area
violations are observed on a follow-up review, the State agency shall
require the school food authority to resolve the problem and to submit
documented corrective action to the State agency within specified
timeframes. If adequate documented corrective action is not received
within those timeframes, the State agency shall withhold Program
payments in accordance with paragraph (l) of this section, until such
time as adequate documented corrective action is received.
(7) Exceptions. FNS may, on an individual school food authority
basis, approve written requests for exceptions to the follow-up review
requirement specified in paragraph (i)(1) of this section if FNS
determines that the requirement conflicts with efficient State agency
management of the program.
(j) Exit conference and notification. The State agency shall hold an
exit conference at the close of the administrative review and of any
subsequent follow-up review to discuss the violations observed, the
extent of the violations and a preliminary assessment of the actions
needed to correct the violations. The State agency shall discuss an
appropriate deadline(s) for completion of corrective action, provided
that the deadline(s) results in the completion of corrective action on a
timely basis. After every review, the State
[[Page 54]]
agency shall provide written notification of the review findings to the
school food authority's Superintendent (or equivalent in a non-public
school food authority) or authorized representative. The written
notification shall include the review findings, the needed corrective
actions, the deadlines for completion of the corrective action, and the
potential fiscal action. As a part of the denial of all or a part of a
Claim for Reimbursement or withholding payment in accordance with the
provisions of this section, the State agency shall provide the school
food authority a written notice which details the grounds on which the
denial of all or a part of the Claim for Reimbursement or withholding
payment is based. This notice, which shall be sent by certified mail,
return receipt requested, shall also include a statement indicating that
the school food authority may appeal the denial of all or a part of a
Claim for Reimbursement or withholding payment and the entity (i.e., FNS
or State agency) to which the appeal should be directed. The State
agency shall notify the school food authority, in writing, of the appeal
procedures as specified in Sec. 210.18(q) for appeals of State agency
findings, and for appeals of FNS findings, provide a copy of
Sec. 210.29(d)(3) of the regulations.
(k) Corrective action. Corrective action is required for any
violation under either the critical or general areas of the review.
Corrective action shall be applied to all schools in the school food
authority, as appropriate, to ensure that previously deficient practices
and procedures are revised system-wide.
Corrective actions may include training, technical assistance,
recalculation of data to ensure the correctness of any claim that the
school food authority is preparing at the time of the review, or other
actions. Fiscal action shall be taken in accordance with paragraph (m)
of this section.
(1) Extensions of the timeframes. If extraordinary circumstances
arise where a school food authority is unable to complete the required
corrective action within the timeframes specified by the State agency,
the State agency may extend the timeframes upon written request of the
school food authority.
(2) Documented corrective action. Documented corrective action is
required for any degree of violation of general or critical areas
identified in an administrative review or on any follow-up review.
Documented corrective action may be provided at the time of the review;
however, it shall be postmarked or submitted to the State agency no
later than 30 days from the deadline for completion of each required
corrective action, as specified under paragraph (j) of this section or
as otherwise extended by the State agency under paragraph (k)(1) of this
section. The State agency shall maintain any documented corrective
action on file for review by FNS.
(l) Withholding payment. At a minimum, the State agency shall
withhold Program payments to a school food authority as follows:
(1) Cause. (i) The State agency shall withhold all Program payments
to a school food authority if documented corrective action for critical
area violation(s) which exceed the review threshold(s) is not provided
within the deadlines specified in paragraph (k)(2) of this section; and/
or
(ii) The State agency shall withhold all Program payments to a
school food authority if, in the event that a follow-up review is not
conducted, the State agency finds that corrective action for a critical
area violation which exceeded the review threshold was not completed
within the deadlines specified in paragraph (j) of this section or as
otherwise extended by the State agency under paragraph (k)(1) of this
section; and/or
(iii) The State agency shall withhold all Program payments to a
school food authority if, on a follow-up review, the State agency finds
a critical area violation which exceeded the review threshold on a
previous review and continues to exceed the review threshold on a
follow-up review.
(iv) The State agency may withhold payments at its discretion, if
the State agency finds that documented corrective action is not provided
within the deadlines specified in paragraph (k)(2) of this section, that
corrective action is not complete or that corrective action was not
taken as specified in the
[[Page 55]]
documented corrective action for a general area violation or for a
critical area violation which did not exceed the review threshold.
(2) Duration. In all cases, Program payments shall be withheld until
such time as corrective action is completed, and documented corrective
action is received and deemed acceptable by the State agency or as
otherwise specified in paragraph (i)(5) of this section. Subsequent to
the State agency's acceptance of the corrective actions (and a follow-up
review, when required), payments will be released for all lunches served
in accordance with the provisions of this part during the period the
payments were withheld. In very serious cases, the State agency will
evaluate whether the degree of non-compliance warrants termination in
accordance with Sec. 210.25 of this part.
(3) Exceptions. The State agency may, at its discretion, reduce the
amount required to be withheld from a school food authority pursuant to
paragraph (l)(1)(i) through (iii) of this section by as much as 60
percent of the total Program payments when it is determined to be in the
best interest of the Program. FNS may authorize a State agency to limit
withholding of funds to an amount less than 40 percent of the total
Program payments, if FNS determines such action to be in the best
interest of the Program.
(4) Failure to withhold payments. FNS may suspend or withhold
Program payments, in whole or in part, to those State agencies failing
to withhold Program payments in accordance with paragraph (l)(1) of this
section and may withhold administrative funds in accordance with
Sec. 235.11(b) of this title. The withholding of Program payments will
remain in effect until such time as the State agency documents
compliance with paragraph (l)(1) of this section to FNS. Subsequent to
the documentation of compliance, any withheld administrative funds will
be released and payment will be released for any lunches served in
accordance with the provisions of this part during the period the
payments were withheld.
(m) Fiscal action. For purposes of the critical areas of the
administrative review and any follow-up reviews, fiscal action is
required for all violations of Performance Standards 1 and 2. Except
that, on an administrative review, the State agency may limit fiscal
action from the point corrective action occurs back through the
beginning of the review period for errors identified under paragraphs
(g)(1)(i)(A) and (g)(1)(i)(B) of this section, provided corrective
action occurs. Fiscal action shall be taken in accordance with the
provisions identified under Sec. 210.19(c) of this part.
(n) Miscellaneous reporting requirement. Each State agency shall
report to FNS the results of reviews by March 1 of each school year, on
a form designated by FNS. In such annual reports, the State agency shall
include the results of all administrative reviews and follow-up reviews
conducted in the preceding school year.
(o) Summary of reporting requirements. Each State agency shall
report to FNS:
(1) The names of those large school food authorities exceeding any
one of the critical area review thresholds as described in paragraph
(d)(2) of this section.
(2) The results of reviews by March 1 of each school year on a form
designated by FNS, as specified under paragraph (n) of this section.
(p) Recordkeeping. Each State agency shall keep records which
document the details of all reviews and demonstrate the degree of
compliance with the critical and general areas of review. Records shall
be retained by the State agency as specified in Sec. 210.23(c) of this
part. Such records shall include documentation of administrative reviews
and follow-up reviews. As appropriate, the records shall include
documented corrective action, and documentation of withholding of
payments and fiscal action, including recoveries made. Additionally, the
State agency must have on file:
(1) Criteria for selecting schools on first and follow-up reviews in
accordance with paragraphs (e)(2)(ii) and (i)(2)(ii) of this section.
(2) Its system for selecting small school food authorities for
follow-up reviews in accordance with paragraph (i)(1) of this section.
(3) Documentation demonstrating compliance with the statistical
sampling requirements in accordance with
[[Page 56]]
paragraph (g)(1)(i)(A)(1) of this section, if applicable.
(q) School food authority appeal of State agency findings. Except
for FNS-conducted reviews authorized under Sec. 210.29(d)(2), each State
agency shall establish an appeal procedure to be followed by a school
food authority requesting a review of a denial of all or a part of the
Claim for Reimbursement or withholding payment arising from
administrative or follow-up review activity conducted by the State
agency under Sec. 210.18 of this part. State agencies may use their own
appeal procedures provided the same procedures are applied to all
appellants in the State and the procedures meet the following
requirements: appellants are assured of a fair and impartial hearing
before an independent official at which they may be represented by legal
counsel; decisions are rendered in a timely manner not to exceed 120
days from the date of the receipt of the request for review; appellants
are afforded the right to either a review of the record with the right
to file written information, or a hearing which they may attend in
person; and adequate notice is given of the time, date, place and
procedures of the hearing. If the State agency has not established its
own appeal procedures or the procedures do not meet the above listed
criteria, the State agency shall observe the following procedures at a
minimum:
(1) The written request for a review shall be postmarked within 15
calendar days of the date the appellant received the notice of the
denial of all or a part of the Claim for Reimbursement or withholding of
payment, and the State agency shall acknowledge the receipt of the
request for appeal within 10 calendar days;
(2) The appellant may refute the action specified in the notice in
person and by written documentation to the review official. In order to
be considered, written documentation must be filed with the review
official not later than 30 calendar days after the appellant received
the notice. The appellant may retain legal counsel, or may be
represented by another person. A hearing shall be held by the review
official in addition to, or in lieu of, a review of written information
submitted by the appellant only if the appellant so specifies in the
letter of request for review. Failure of the appellant school food
authority's representative to appear at a scheduled hearing shall
constitute the appellant school food authority's waiver of the right to
a personal appearance before the review official, unless the review
official agrees to reschedule the hearing. A representative of the State
agency shall be allowed to attend the hearing to respond to the
appellant's testimony and to answer questions posed by the review
official;
(3) If the appellant has requested a hearing, the appellant and the
State agency shall be provided with at least 10 calendar days advance
written notice, sent by certified mail, return receipt requested, of the
time, date and place of the hearing;
(4) Any information on which the State agency's action was based
shall be available to the appellant for inspection from the date of
receipt of the request for review;
(5) The review official shall be an independent and impartial
official other than, and not accountable to, any person authorized to
make decisions that are subject to appeal under the provisions of this
section;
(6) The review official shall make a determination based on
information provided by the State agency and the appellant, and on
Program regulations;
(7) Within 60 calendar days of the State agency's receipt of the
request for review, by written notice, sent by certified mail, return
receipt requested, the review official shall inform the State agency and
the appellant of the determination of the review official. The final
determination shall take effect upon receipt of the written notice of
the final decision by the school food authority;
(8) The State agency's action shall remain in effect during the
appeal process;
(9) The determination by the State review official is the final
administrative determination to be afforded to the appellant.
(r) FNS review activity. The term ``State agency'' and all the
provisions specified in paragraphs (a)-(h) of this section refer to FNS
when FNS conducts administrative reviews or follow-
[[Page 57]]
up reviews in accordance with Sec. 210.29(d)(2). FNS will notify the
State agency of the review findings and the need for corrective action
and fiscal action. The State agency shall pursue any needed follow-up
activity.
[56 FR 32942, July 17, 1991; 56 FR 55527, Oct. 28, 1991, as amended at
57 FR 38584, Aug. 26, 1992; 57 FR 40729, Sept. 4, 1992; 59 FR 1894, Jan.
13, 1994; 60 FR 31215, June 13, 1995; 60 FR 57147, Nov. 14, 1995; 64 FR
50740, 50741, Sept. 20, 1999; 64 FR 72471, Dec. 28, 1999]
Effective Date Note: At 64 FR 72471, Dec. 28, 1999, Sec. 210.18 was
amended by revising paragraph (g)(1)(i)(A)(4), and by removing ``food
stamp or AFDC'' in paragraph (g)(1)(i)(B) and adding in its place ``food
stamp, Food Distribution Program for Households on Indian Reservations
(FDPIR) or Temporary Assistance for Needy Families (TANF)'', effective
Jan. 27, 2000. For the convenience of the user, the superseded text
follows.
Sec. 210.18 Administrative reviews.
* * * * *
(g) * * *
(1) * * *
(i) * * *
(A) * * *
(4) In the case where child(ren) are determined eligible for free
lunches based on documentation from the local food stamp or AFDC agency
which certifies that the child(ren) is currently a member of a household
receiving benefits under the Food Stamp or AFDC Program, determine that
the certification from the Food Stamp Program or AFDC Program is
official; all the information required under Sec. 245.6 of this title is
complete; and such children were enrolled in the school under review
during the review period.
* * * * *
Sec. 210.19 Additional responsibilities.
(a) General Program management. Each State agency shall provide an
adequate number of consultative, technical and managerial personnel to
administer programs and monitor performance in complying with all
Program requirements.
(1) Compliance with nutrition standards. Beginning with School Year
1996-1997 (unless the school food authority has an implementation waiver
as provided in Sec. 210.10(o)), State agencies shall evaluate
compliance, over the school week, with the nutrition standards in
Sec. 210.10(b) and Sec. 210.10(c) or (d), whichever is applicable. At a
minimum, these evaluations shall be conducted once every 5 years and may
be conducted at the same time a school food authority is scheduled for
an administrative review in accordance with Sec. 210.18. State agencies
may also conduct these evaluations in conjunction with technical
assistance visits, other reviews, or separately. The type of evaluation
conducted by the State agency shall be determined by the menu planning
alternative chosen by the school food authority.
(i) For school food authorities choosing the nutrient standard menu
planning or assisted nutrient standard menu planning options provided in
Sec. 210.10(i) and Sec. 210.10(j), respectively, the State agency shall
assess the nutrient analysis for the last completed school week prior to
the review period to determine if the school food authority is applying
the methodology in Sec. 210.10(i) or Sec. 210.10(j), as appropriate.
Part of this assessment shall be an independent review of menus and
production records to determine if they correspond to the analysis
conducted by the school food authority and if the menu, as offered, over
a school week, corresponds to the nutrition standards set forth in
Sec. 210.10(b) and the appropriate calorie and nutrient levels in
Sec. 210.10(c) or Sec. 210.10(i)(1), whichever is applicable.
(ii) For school food authorities choosing the food-based menu
planning alternative in Sec. 210.10(k), the State agency shall conduct
nutrient analysis on the menu(s) served during the review period to
determine if the nutrition standards set forth in Sec. 210.10(b) and
Sec. 210.10(d) are met, except that, the State agency may:
(A) Use the nutrient analysis of any school or school food authority
that offers meals using the food-based menu planning alternative
provided in Sec. 210.10(k) and/or Sec. 220.8(g) of this chapter and that
conducts its own nutrient analysis under the criteria for nutrient
analysis established in Sec. 210.10 and Sec. 220.8 for nutrient standard
menu planning and assisted nutrient standard menu planning of those
meals; or
[[Page 58]]
(B) Develop its own method for compliance review, subject to USDA
approval.
(iii) If the menu for the school week fails to comply with the
nutrition standards specified in Sec. 210.10(b) and/or Sec. 220.8(a) and
the appropriate nutrient levels in either Sec. 210.10(c),
Sec. 210.10(d), or Sec. 210.10(i)(1) whichever is applicable, and/or
Sec. 220.8(b), Sec. 220.8(c) or Sec. 220.8(e)(1) of this chapter,
whichever is applicable, the school food authority shall develop, with
the assistance and concurrence of the State agency, a corrective action
plan designed to rectify those deficiencies. The State agency shall
monitor the school food authority's execution of the plan to ensure that
the terms of the corrective action plan are met.
(iv) If a school food authority fails to meet the terms of the
corrective action plan, the State agency shall determine if the school
food authority is working in good faith towards compliance and, if so,
may renegotiate the corrective action plan, if warranted. However, if
the school food authority has not been acting in good faith to meet the
terms of the corrective action plan and refuses to renegotiate the plan,
the State agency shall determine if a disallowance of reimbursement
funds as authorized under paragraph (c) of this section is warranted.
(2) Assurance of compliance for finances. Each State agency shall
ensure that school food authorities comply with the requirements to
account for all revenues and expenditures of their nonprofit school food
service. School food authorities shall meet the requirements for the
allowability of nonprofit school food service expenditures in accordance
with this part and, as applicable, 7 CFR part 3015. The State agency
shall ensure compliance with the requirements to limit net cash
resources and shall provide for approval of net cash resources in excess
of three months' average expenditures. Each State agency shall monitor,
through review or audit or by other means, the net cash resources of the
nonprofit school food service in each school food authority
participating in the Program. In the event that net cash resources
exceed 3 months' average expenditures for the school food authority's
nonprofit school food service or such other amount as may be approved in
accordance with this paragraph, the State agency may require the school
food authority to reduce the price children are charged for lunches,
improve food quality or take other action designed to improve the
nonprofit school food service. In the absence of any such action, the
State agency shall make adjustments in the rate of reimbursement under
the Program.
(3) Improved management practices. The State agency shall work with
the school food authority toward improving the school food authority's
management practices where the State agency has found poor food service
management practices leading to decreasing or low child participation
and/or poor child acceptance of the Program or of foods served. If a
substantial number of children who routinely and over a period of time
do not favorably accept a particular item that is offered; return foods;
or choose less than all food items/components or foods and menu items,
as authorized under Sec. 210.10 or Sec. 210.10a, whichever is
applicable, poor acceptance of certain menus may be indicated.
(4) Program compliance. Each State agency shall require that school
food authorities comply with the applicable provisions of this part. The
State agency shall ensure compliance through audits, administrative
reviews, technical assistance, training guidance materials or by other
means.
(5) Investigations. Each State agency shall promptly investigate
complaints received or irregularities noted in connection with the
operation of the Program, and shall take appropriate action to correct
any irregularities. State agencies shall maintain on file, evidence of
such investigations and actions. FNS and OIG may make reviews or
investigations at the request of the State agency or where FNS or OIG
determines reviews or investigations are appropriate.
(6) Food service management companies. Each State agency shall
annually review each contract between any school food authority and food
service management company to ensure compliance with all the provisions
and standards set forth in Sec. 210.16 of this part.
[[Page 59]]
Each State agency shall perform an on-site review of each school food
authority contracting with a food service management company, at least
once during each 5-year period. The State agency is encouraged to
conduct such a review when performing reviews in accordance with
Sec. 210.18. Such reviews shall include an assessment of the school food
authority's compliance with Sec. 210.16 of this part. The State agency
may require that all food service management companies that wish to
contract for food service with any school food authority in the State
register with the State agency. State agencies shall provide assistance
upon request of a school food authority to assure compliance with
Program requirements.
(b) Donated food distribution information. Information on schools
eligible to receive donated foods available under section 6 of the
National School Lunch Act (42 U.S.C. 1755) shall be prepared each year
by the State agency with accompanying information on the average daily
number of lunches to be served in such schools. This information shall
be prepared as early as practicable each school year and forwarded no
later than September 1 to the Distributing agency. The State agency
shall be responsible for promptly revising the information to reflect
additions or deletions of eligible schools, and for providing such
adjustments in participation as are determined necessary by the State
agency. Schools shall be consulted by the Distributing agency with
respect to the needs of such schools relating to the manner of selection
and distribution of commodity assistance.
(c) Fiscal action. State agencies are responsible for ensuring
Program integrity at the school food authority level. State agencies
shall take fiscal action against school food authorities for Claims for
Reimbursement that are not properly payable under this part including,
if warranted, the disallowance of funds for failure to take corrective
action in accordance with paragraph (a)(1) of this section. In taking
fiscal action, State agencies shall use their own procedures within the
constraints of this part and shall maintain all records pertaining to
action taken under this section. The State agency may refer to FNS for
assistance in making a claims determination under this part.
(1) Definition. Fiscal action includes, but is not limited to, the
recovery of overpayment through direct assessment or offset of future
claims, disallowance of overclaims as reflected in unpaid Claims for
Reimbursement, submission of a revised Claim for Reimbursement, and
correction of records to ensure that unfiled Claims for Reimbursement
are corrected when filed. Fiscal action also includes disallowance of
funds for failure to take corrective action in accordance with paragraph
(a)(1) of this section.
(2) General principles. When taking fiscal action, State agencies
shall consider the following:
(i) The State agency shall identify the school food authority's
correct entitlement and take fiscal action when any school food
authority claims or receives more Federal funds than earned under
Sec. 210.7 of this part. In order to take fiscal action, the State
agency shall identify accurate counts of reimbursable lunches through
available data, if possible. In the absence of reliable data, the State
agency shall reconstruct the lunch accounts in accordance with
procedures established by FNS. Such procedures will be based on the best
available information including, participation factors for the review
period, data from similar schools in the school food authority, etc.
(ii) Unless otherwise specified under Sec. 210.18(m) of this part,
fiscal action shall be extended back to the beginning of the school year
or that point in time during the current school year when the infraction
first occurred, as applicable. Based on the severity and longevity of
the problem, the State agency may extend fiscal action back to previous
school years, as applicable. The State agency shall ensure that any
Claim for Reimbursement, filed subsequent to the reviews conducted under
Sec. 210.18 and prior to the implementation of corrective action, is
limited to lunches eligible for reimbursement under this part.
[[Page 60]]
(iii) In taking fiscal action, State agencies shall assume that
children determined by the reviewer to be incorrectly approved for free
and reduced price lunches participated at the same rate as correctly
approved children in the corresponding lunch category.
(3) Failure to collect. If a State agency fails to disallow a claim
or recover an overpayment from a school food authority, as described in
this section, FNS will notify the State agency that a claim may be
assessed against the State agency. In all such cases, the State agency
shall have full opportunity to submit evidence concerning overpayment.
If after considering all available information, FNS determines that a
claim is warranted, FNS will assess a claim in the amount of such
overpayment against the State agency. If the State agency fails to pay
any such demand for funds promptly, FNS will reduce the State agency's
Letter of Credit by the sum due in accordance with FNS' existing offset
procedures for Letter of Credit. In such event, the State agency shall
provide the funds necessary to maintain Program operations at the level
of earnings from a source other than the Program.
(4) Interest charge. If an agreement cannot be reached with the
State agency for payment of its debts or for offset of debts on its
current Letter of Credit, interest will be charged against the State
agency from the date the demand leter was sent, at the rate established
by the Secretary of Treasury.
(5) Use of recovered payment. The amounts recovered by the State
agency from school food authorities may be utilized during the fiscal
year for which the funds were initially available, first, to make
payments to school food authorities for the purposes of the Program; and
second, to repay any State funds expended in the reimbursement of claims
under the Program and not otherwise repaid. Any amounts recovered which
are not so utilized shall be returned to FNS in accordance with the
requirements of this part.
(6) Exceptions. The State agency need not disallow payment or
collect an overpayment arising out of the situations described in
paragraphs (c)(6) (i) and (ii) of this section; provided that the school
food authority corrects the problem(s) to the satisfaction of the State
agency:
(i) when any review or audit reveals that a school food authority is
failing to meet the quantities for each food item required under the
meal pattern in Sec. 210.10a or the food-based menu planning alternative
in Sec. 210.10(k), whichever is applicable; or
(ii) when any review or audit reveals that a school food authority
is approving applications which indicate that the households' incomes
are within the Income Eligibility Guidelines issued by the Department or
the applications contain a food stamp or AFDC case number but the
applications are missing the documentation specified under 7 CFR 245.2
(a-4) (3) and/or (4); or
(iii) when any review or audit reveals that a school food
authority's failure to meet the nutrition standards of Sec. 210.10 is
unintentional and the school food authority is meeting the requirements
of a corrective plan developed and agreed to under paragraph (a)(1)(iii)
of this section.
(7) Claims adjustment. FNS will have the authority to determine the
amount of, to settle, and to adjust any claim arising under the Program,
and to compromise or deny such claim or any part thereof. FNS will also
have the authority to waive such claims if FNS determines that to do so
would serve the purposes of the Program. This provision shall not
diminish the authority of the Attorney General of the United States
under section 516 of title 28, U.S. Code, to conduct litigation on
behalf of the United States.
(d) Management evaluations. Each State agency shall provide FNS with
full opportunity to conduct management evaluations of all State agency
Program operations and shall provide OIG with full opportunity to
conduct audits of all State agency Program operations. Each State agency
shall make available its records, including records of the receipt and
disbursement of funds under the Program and records of any claim
compromised in accordance with this paragraph, upon a reasonable request
by FNS, OIG, or the Comptroller General of the United States. FNS and
OIG retain the right to visit schools and OIG also has the right to make
audits of the records and
[[Page 61]]
operations of any school. In conducting management evaluations, reviews
or audits for any fiscal year, the State agency, FNS, or OIG may
disregard any overpayment if the total overpayment does not exceed $600
or, in the case of State agency claims in State administered Programs,
it does not exceed the amount established under State law, regulations
or procedure as a minimum amount for which claim will be made for State
losses but not to exceed $600. However, no overpayment is to be
disregarded where there is substantial evidence of violations of
criminal law or civil fraud statutes.
(e) Additional requirements. Nothing contained in this part shall
prevent a State agency from imposing additional requirements for
participation in the Program which are not inconsistent with the
provisions of this part.
(f) Cooperation with the Child and Adult Care Food Program. On an
annual basis, the State agency shall provide the State agency which
administers the Child and Adult Care Food Program with a list of all
elementary schools in the State participating in the National School
Lunch Program in which 50 percent or more of enrolled children have been
determined eligible for free or reduced price meals as of the last
operating day of the previous October, or other month specified by the
State agency. The first list shall be provided by March 15, 1997;
subsequent lists shall be provided by February 1 of each year or, if
data is based on a month other than October, within 90 calendar days
following the end of the month designated by the State agency. The State
agency may provide updated free and reduced price enrollment data on
individual schools to the State agency which administers the Child and
Adult Care Food Program only when unusual circumstances render the
initial data obsolete. In addition, the State agency shall provide the
current list, upon request, to sponsoring organizations of day care
homes participating in the Child and Adult Care Food Program.
[53 FR 29147, Aug. 2, 1988, as amended at 54 FR 12582, Mar. 28, 1989; 56
FR 32947, July 17, 1991; 57 FR 38586, Aug. 26, 1992; 59 FR 1894, Jan.
13, 1994; 60 FR 31215, June 13, 1995; 60 FR 57147, Nov. 14, 1995; 62 FR
901, Jan. 7, 1997; 63 FR 9104, Feb. 24, 1998; 64 FR 50741, Sept. 20,
1999]
Sec. 210.20 Reporting and recordkeeping.
(a) Reporting summary. Participating State agencies shall submit
forms and reports to FNS to demonstrate compliance with Program
requirements. The reports include but are not limited to:
(1) Requests for cash to make reimbursement payments to school food
authorities as required under Sec. 210.5(a);
(2) Information on the amounts of Federal Program funds expended and
obligated to date (SF-269) as required under Sec. 210.5(d);
(3) Statewide totals on Program participation (FNS-10) as required
under Sec. 210.5(d);
(4) Information on State funds provided by the State to meet the
State matching requirements (FNS-13) specified under Sec. 210.17(g);
(5) The names of school food authorities in need of a follow-up
review;
(6) Results of reviews and audits; and
(7) Results of the commodity preference survey and recommendations
for commodity purchases as required under Sec. 250.13(k) of this
chapter.
(b) Recordkeeping summary. Participating State agencies are required
to maintain records to demonstrate compliance with Program requirements.
The records include but are not limited to:
(1) Accounting records and source documents to control the receipt,
custody and disbursement of Federal Program funds as required under
Sec. 210.5(a);
(2) Documentation supporting all school food authority claims paid
by the State agency as required under Sec. 210.5(d);
(3) Documentation to support the amount the State agency reported
having used for State revenue matching as required under Sec. 210.17(h);
[[Page 62]]
(4) Records supporting the State agency's review of net cash
resources as required under Sec. 210.19(a);
(5) Reports on the results of investigations of complaints received
or irregularities noted in connection with Program operations as
required under Sec. 210.19(a)
(6) Records of all reviews and audits, including records of action
taken to correct Program violations; and records of fiscal action taken,
including documentation of recoveries made;
(7) State agency criteria for selecting schools for reviews and
small school food authorities for follow-up reviews;
(8) Documentation of action taken to disallow improper claims
submitted by school food authorities, as required by Sec. 210.19(c) and
as determined through claims processing, resulting from actions such as
reviews, audits and USDA audits;
(9) Records of USDA audit findings, State agency's and school food
authorities' responses to them and of corrective action taken as
required by Sec. 210.22(a);
(10) Records pertaining to civil rights responsibilities as defined
under Sec. 210.23(b); and
(11) Records pertaining to the annual food preference survey of
school food authorities as required by Sec. 250.13(k) of this chapter.
[53 FR 29147, Aug. 2, 1988, as amended at 56 FR 32948, July 17, 1991; 56
FR 55527, Oct. 28, 1991; 64 FR 50741, Sept. 20, 1999]
Subpart E--State Agency and School Food Authority Responsibilities
Sec. 210.21 Procurement.
(a) General. State agencies and school food authorities shall comply
with the requirements of 7 CFR part 3015 concerning the procurement of
supplies, food, equipment and other services with Program funds. These
requirements ensure that such materials and services are obtained for
the Program efficiently and economically and in compliance with
applicable laws and executive orders.
(b) Contractual responsibilities. The standards contained in 7 CFR
part 3015 do not relieve the State agency or school food authority of
any contractual responsibilities under its contracts. The State agency
or school food authority is the responsible authority, without recourse
to FNS, regarding the settlement and satisfaction of all contractual and
administrative issues arising out of procurements entered into in
connection with the Program. This includes, but is not limited to source
evaluation, protests, disputes, claims, or other matters of a
contractual nature. Matters concerning violation of law are to be
referred to the local, State, or Federal authority that has proper
jurisdiction.
(c) Procurement procedure. The State agency or school food authority
may use its own procurement procedures which reflect applicable State
and local laws and regulations, provided that procurements made with
Program funds adhere to the standards set forth in 7 CFR part 3015.
(d) Buy American.--(1) Definition of domestic commodity or product.
In this paragraph (d), the term `domestic commodity or product' means--
(i) An agricultural commodity that is produced in the United States;
and
(ii) A food product that is processed in the United States
substantially using agricultural commodities that are produced in the
United States.
(2) Requirement. (i) In general. Subject to paragraph (d)(2)(ii) of
this section, the Department shall require that a school food authority
purchase, to the maximum extent practicable, domestic commodities or
products.
(ii) Limitations. Paragraph (d)(2)(i) of this section shall apply
only to--
(A) A school food authority located in the contiguous United States;
and
(B) A purchase of domestic commodity or product for the school lunch
program under this part.
(3) Applicability to Hawaii. Paragraph (d)(2)(i) of this section
shall apply to a school food authority in Hawaii with respect to
domestic commodities or products that are produced in Hawaii in
sufficient quantities to meet the needs of meals provided under the
school lunch program under this part.
[53 FR 29147, Aug. 2, 1988, as amended at 64 FR 50741, Sept. 20, 1999]
[[Page 63]]
Sec. 210.22 Audits.
(a) General. State agencies and school food authorities shall comply
with the requirements of 7 CFR part 3015 concerning the audit
requirements for recipients and subrecipients of the Department's
financial assistance.
(b) Audit procedure. These requirements call for organization-wide
financial and compliance audits to ascertain whether financial
operations are conducted properly; financial statements are presented
fairly; recipients and subrecipients comply with the laws and
regulations that affect the expenditures of Federal funds; recipients
and subrecipients have established procedures to meet the objectives of
federally assisted programs; and recipients and subrecipients are
providing accurate and reliable information concerning grant funds.
States and school food authorities shall use their own procedures to
arrange for and prescribe the scope of independent audits, provided that
such audits comply with the requirements set forth in 7 CFR part 3015.
Sec. 210.23 Other responsibilities.
(a) Free and reduced price lunches and meal supplements. State
agencies and school food authorities shall ensure that lunches and meal
supplements are made available free or at a reduced price to all
children who are determined by the school food authority to be eligible
for such benefits. The determination of a child's eligibility for free
or reduced price lunches and meal supplements is to be made in
accordance with 7 CFR part 245.
(b) Civil rights. In the operation of the Program, no child shall be
denied benefits or be otherwise discriminated against because of race,
color, national origin, age, sex, or disability. State agencies and
school food authorities shall comply with the requirements of: Title VI
of the Civil Rights Act of 1964; title IX of the Education Amendments of
1972; section 504 of the Rehabilitation Act of 1973; the Age
Discrimination Act of 1975; Department of Agriculture regulations on
nondiscrimination (7 CFR parts 15, 15a, and 15b); and FNS Instruction
113-6.
(c) Retention of records. State agencies and school food authorities
may retain necessary records in their original form or on microfilm.
State agency records shall be retained for a period of 3 years after the
date of submission of the final Financial Status Report for the fiscal
year. School food authority records shall be retained for a period of 3
years after submission of the final Claim for Reimbursement for the
fiscal year. In either case, if audit findings have not been resolved,
the records shall be retained beyond the 3-year period as long as
required for the resolution of the issues raised by the audit.
[53 FR 29147, Aug. 2, 1988, as amended at 58 FR 42489, Aug. 10, 1993; 64
FR 50741, Sept. 20, 1999]
Subpart F--Additional Provisions
Sec. 210.24 Withholding payments.
In accordance with Sec. 3015.103 of this title, the State agency
shall withhold Program payments, in whole or in part, to any school food
authority which has failed to comply with the provisions of this part.
Program payments shall be withheld until the school food authority takes
corrective action satisfactory to the State agency, or gives evidence
that such corrective action will be taken, or until the State agency
terminates the grant in accordance with Sec. 210.25 of this part.
Subsequent to the State agency's acceptance of the corrective actions,
payments will be released for any lunches served in accordance with the
provisions of this part during the period the payments were withheld.
[56 FR 32948, July 17, 1991]
Sec. 210.25 Suspension, termination and grant closeout procedures.
Whenever it is determined that a State agency has materially failed
to comply with the provisions of this part, or with FNS guidelines and
instructions, FNS may suspend or terminate the Program in whole, or in
part, or take any other action as may be available and appropriate. A
State agency may also terminate the Program by mutual agreement with
FNS. FNS and the State agency shall comply with the provisions of the
Department's Uniform Federal Assistance Regulations, 7 CFR part 3015,
subpart N
[[Page 64]]
concerning grant suspension, termination and closeout procedures.
Furthermore, the State agency shall apply these provisions to suspension
or termination of the Program in school food authorities.
[53 FR 29147, Aug. 2, 1988. Redesignated at 56 FR 32948, July 17, 1991]
Sec. 210.26 Penalties.
Whoever embezzles, willfully misapplies, steals, or obtains by fraud
any funds, assets, or property provided under this part whether received
directly or indirectly from the Department, shall if such funds, assets,
or property are of a value of $100 or more, be fined no more than
$25,000 or imprisoned not more than 5 years or both; or if such funds,
assets, or property are of a value of less than $100, be fined not more
than $1,000 or imprisoned not more than 1 year or both. Whoever
receives, conceals, or retains for personal use or gain, funds, assets,
or property provided under this part, whether received directly or
indirectly from the Department, knowing such funds, assets, or property
have been embezzled, willfully misapplied, stolen, or obtained by fraud,
shall be subject to the same penalties.
[53 FR 29147, Aug. 2, 1988. Redesignated at 56 FR 32948, July 17, 1991,
as amended at 64 FR 50741, Sept. 20, 1999]
Sec. 210.27 Educational prohibitions.
In carrying out the provisions of the Act, the Department shall not
impose any requirements with respect to teaching personnel, curriculum,
instructions, methods of instruction, or materials of instruction in any
school as a condition for participation in the Program.
[53 FR 29147, Aug. 2, 1988. Redesignated at 56 FR 32948, July 17, 1991,
as amended at 64 FR 50741, Sept. 20, 1999]
Sec. 210.28 Pilot project exemptions.
Those State agencies or school food authorities selected for the
pilot projects mandated under section 18(d) of the Act may be exempted
by the Department from some or all of the counting and free and reduced
price application requirements of this part and 7 CFR part 245, as
necessary, to conduct an approved pilot project. Additionally, those
schools selected for pilot projects that also operate the School
Breakfast Program (7 CFR part 220) and/or the Special Milk Program for
Children (7 CFR part 215), may be exempted from the counting and free
and reduced price application requirements mandated under these
Programs. The Department shall notify the appropriate State agencies and
school food authorities of its determination of which requirements are
exempted after the Department's selection of pilot projects.
[55 FR 41504, Oct. 12, 1990. Redesignated at 56 FR 32948, July 17, 1991.
Further redesignated at 64 FR 50741, Sept. 20, 1999]
Sec. 210.29 Management evaluations.
(a) Management evaluations. FNS will conduct a comprehensive
management evaluation of each State agency's administration of the
National School Lunch Program.
(b) Basis for evaluations. FNS will evaluate all aspects of State
agency management of the Program using tools such as State agency
reviews as required under Sec. 210.18 or Sec. 210.18a of this part;
reviews conducted by FNS in accordance with Sec. 210.18 of this part;
FNS reviews of school food authorities and schools authorized under
Sec. 210.19(a)(4) of this part; follow-up reviews and actions taken by
the State agency to correct violations found during reviews; FNS
observations of State agency reviews; and audit reports.
(c) Scope of management evaluations. The management evaluation will
determine whether the State agency has taken steps to ensure school food
authority compliance with Program regulations, and whether the State
agency is administering the Program in accordance with Program
requirements and good management practices.
(1) Local compliance. FNS will evaluate whether the State agency has
actively taken steps to ensure that school food authorities comply with
the provisions of this part.
(2) State agency compliance. FNS will evaluate whether the State
agency has fulfilled its State level responsibilities, including, but
not limited to the following areas: use of Federal funds; reporting and
recordkeeping; agreements
[[Page 65]]
with school food authorities; review of food service management company
contracts; review of the claims payment process; implementation of the
State agency's monitoring responsibilities; initiation and completion of
corrective action; recovery of overpayments; disallowance of claims that
are not properly payable; withholding of Program payments; oversight of
school food authority procurement activities; training and guidance
activities; civil rights; and compliance with the State Administrative
Expense Funds requirements as specified in 7 CFR part 235.
(d) School food authority reviews. FNS will examine State agency
administration of the Program by reviewing local Program operations.
When conducting these reviews under paragraph (d)(2) of this section,
FNS will follow all the administrative review requirements specified in
Sec. 210.18(a)-(h) of this part. When FNS conducts reviews, the findings
will be sent to the State agency to ensure all the needed follow-up
activity occurs. The State agency will, in all cases, be invited to
accompany FNS reviewers.
(1) Observation of State agency reviews. FNS may observe the State
agency conduct of any review and/or any follow-up review as required
under this part. At State agency request, FNS may assist in the conduct
of the review.
(2) Section 210.18 reviews. FNS will conduct administrative reviews
or follow-up reviews in accordance with Sec. 210.18(a)-(h) of this part
which will count toward meeting the State agency responsibilities
identified under Sec. 210.18 of this part.
(3) School food authority appeal of FNS findings. When
administrative or follow-up review activity conducted by FNS in
accordance with the provisions of paragraph (d)(2) of this section
results in the denial of all or part of a Claim for Reimbursement or
withholding of payment, a school food authority may appeal the FNS
findings by filing a written request with the Chief, Administrative
Review Branch, U.S. Department of Agriculture, Food and Nutrition
Service, 3101 Park Center Drive, Alexandria, Virginia, 22302, in
accordance with the appeal procedures specified in this paragraph:
(i) The written request for a review of the record shall be
postmarked within 15 calendar days of the date the appellant received
the notice of the denial of all or a part of the Claim for Reimbursement
or withholding payment and the envelope containing the request shall be
prominently marked ``REQUEST FOR REVIEW''. FNS will acknowledge the
receipt of the request for appeal within 10 calendar days. The
acknowledgement will include the name and address of the FNS
Administrative Review Officer (ARO) reviewing the case. FNS will also
notify the State agency of the request for appeal.
(ii) The appellant may refute the action specified in the notice in
person and by written documentation to the ARO. In order to be
considered, written documentation must be filed with the ARO not later
than 30 calendar days after the appellant received the notice. The
appellant may retain legal counsel, or may be represented by another
person. A hearing shall be held by the ARO in addition to, or in lieu
of, a review of written information submitted by the appellant only if
the appellant so specifies in the letter of request for review. Failure
of the appellant school food authority's representative to appear at a
scheduled hearing shall constitute the appellant school food authority's
waiver of the right to a personal appearance before the ARO, unless the
ARO agrees to reschedule the hearing. A representative of FNS shall be
allowed to attend the hearing to respond to the appellant's testimony
and to answer questions posed by the ARO;
(iii) If the appellant has requested a hearing, the appellant shall
be provided with a least 10 calendar days advance written notice, sent
by certified mail, return receipt requested, of the time, date, and
place of the hearing;
(iv) Any information on which FNS's action was based shall be
available to the appellant for inspection from the date of receipt of
the request for review;
(v) The ARO shall be an independent and impartial official other
than, and not accountable to, any person authorized to make decisions
that are subject to appeal under the provisions of this section;
[[Page 66]]
(vi) The ARO shall make a determination based on information
provided by FNS and the appellant, and on Program regulations;
(vii) Within 60 calendar days of the receipt of the request for
review, by written notice, sent by certified mail, return receipt
requested, the ARO shall inform FNS, the State agency and the appellant
of the determination of the ARO. The final determination shall take
effect upon receipt of the written notice of the final decision by the
school food authority;
(viii) The action being appealed shall remain in effect during the
appeal process;
(ix) The determination by the ARO is the final administrative
determination to be afforded to the appellant.
(4) Coordination with State agency. FNS will coordinate school food
authority selection with the State agency to ensure that no unintended
overlap exists and to ensure reviews are conducted in a consistent
manner.
(e) Management evaluation findings. FNS will consider the results of
all its review activity within each State, including school food
authority reviews, in performing management evaluations and issuing
management evaluation reports. FNS will communicate the findings of the
management evaluation to appropriate State agency personnel in an exit
conference. Subsequent to the exit conference, the State agency will be
notified in writing of the management evaluation findings and any needed
corrective actions or fiscal sanctions in accordance with the provisions
Sec. 210.25 of this part and/or 7 CFR part 235.
[56 FR 32949, July 17, 1991, as amended at 57 FR 38586, Aug. 26, 1992.
Redesignated at 64 FR 50741, Sept. 20, 1999]
Sec. 210.30 Regional office addresses.
School food authorities desiring information concerning the Program
should write to their State educational agency or to the appropriate
Regional Office of FNS as indicated below:
(a) In the States of Connecticut, Maine, Massachusetts, New
Hampshire, New York, Rhode Island, and Vermont: Northeast Regional
Office, FNS, U.S. Department of Agriculture, 10 Causeway Street, Room
501, Boston, Massachusetts 02222-1065.
(b) In the States of Alabama, Florida, Georgia, Kentucky,
Mississippi, North Carolina, South Carolina, and Tennessee: Southeast
Regional Office, FNS, U.S. Department of Agriculture, 1100 Spring
Street, NW., Atlanta, Georgia 30367.
(c) In the States of Illinois, Indiana, Michigan, Minnesota, Ohio,
and Wisconsin: Midwest Regional Office, FNS, U.S. Department of
Agriculture, 50 E. Washington Street, Chicago, Illinois 60602.
(d) In the States of Arkansas, Louisiana, New Mexico, Oklahoma, and
Texas: Southwest Regional Office, FNS, U.S. Department of Agriculture,
1100 Commerce Street, Room 5-C-30, Dallas, Texas 75242.
(e) In the States of Alaska, American Samoa, Arizona, California,
Guam, Hawaii, Idaho, Nevada, Oregon, the Commonwealth of the Northern
Mariana Islands, and Washington: Western Regional Office, FNS, U.S.
Department of Agriculture, 550 Kearny Street, Room 400, San Francisco,
California 94108.
(f) In the States of Delaware, District of Columbia, Maryland, New
Jersey, Pennsylvania, Puerto Rico, Virginia, Virgin Islands, and West
Virginia: Mid-Atlantic Regional Office, FNS, U.S. Department of
Agriculture, Mercer Corporate Park, Corporate Boulevard, CN 02150,
Trenton, New Jersey 08650.
(g) In the States of Colorado, Iowa, Kansas, Missouri, Montana,
Nebraska, North Dakota, South Dakota, Utah, and Wyoming: Mountain Plains
Regional Office, FNS, U.S. Department of Agriculture, 1244 Speer
Boulevard, Suite 903, Denver, Colorado 80204.
[53 FR 29147, Aug. 2, 1988. Redesignated at 55 FR 41503, Oct. 12, 1990.
Further redesignated at 56 FR 32948, July 17, 1991. Further redesignated
at 64 FR 50741, Sept. 20, 1999]
Sec. 210.31 OMB control numbers.
The following control numbers have been assigned to the information
collection requirements in 7 CFR part 210 by the Office of Management
and Budget pursuant to the Paperwork Reduction Act of 1980, Pub. L. 96-
511.
[[Page 67]]
------------------------------------------------------------------------
Current OMB
7 CFR section where requirements are described control No.
------------------------------------------------------------------------
210.3(b)............................................... 0584-0327
210.5(d)............................................... 0584-0006
210.5(d)(1)............................................ 0584-0002
210.5(d)(2)............................................ 0584-0341
210.5(d)(3)............................................ 0584-0341
210.6(b)............................................... 0584-0006
210.8.................................................. 0584-0006
0584-0284
210.9.................................................. 0584-0006
0584-0026
0584-0329
210.10(b).............................................. 0584-0006
210.10(i)(1)........................................... 0584-0006
210.14(c).............................................. 0584-0006
210.16................................................. 0584-0006
210.17................................................. 0584-0006
210.17(g).............................................. 0584-0075
210.18................................................. 0584-0006
210.19................................................. 0584-0006
210.22................................................. 0584-0006
210.23(c).............................................. 0584-0006
210.24................................................. 0584-0006
210.27................................................. 0584-0006
------------------------------------------------------------------------
[53 FR 29147, Aug. 2, 1990. Redesignated at 55 FR 41503, Oct. 12, 1990.
Further redesignated at 56 FR 32948, July 17, 1991. Further redesignated
at 64 FR 50741, Sept. 20, 1999]
Appendix A to Part 210--Alternate Foods for Meals
Enriched Macaroni Products With Fortified Protein
1. Schools may utilize the enriched macaroni products with fortified
protein defined in paragraph 3 as a food item in meeting the meal
requirements of this part under the following terms and conditions:
(a) One ounce (28.35 grams) of a dry enriched macaroni product with
fortified protein may be used to meet not more than one-half of the meat
or meat alternate requirements specified in Sec. 210.10 or Sec. 210.10a,
whichever is applicable, when served in combination with 1 or more
ounces (28.35 grams) of cooked meat, poultry, fish, or cheese. The size
of servings of the cooked combination may be adjusted for various age
groups.
(b) Only enriched macaroni products with fortified protein that bear
a label containing substantially the following legend shall be so
utilized: ``One ounce (28.35 grams) dry weight of this product meets
one-half of the meat or meat alternate requirements of lunch or supper
of the USDA child nutrition programs when served in combination with 1
or more ounces (28.35 grams) of cooked meat, poultry, fish, or cheese.
In those States where State or local law prohibits the wording
specified, a legend acceptable to both the State or local authorities
and FNS shall be substituted.''
(c) Enriched macaroni product may not be used for infants under 1
year of age.
2. Only enriched macaroni products with fortified protein that have
been accepted by FNS for use in the USDA Child Nutrition Programs may be
labeled as provided in paragraph 1(b) of this appendix. Manufacturers
seeking acceptance of their product shall furnish FNS a chemical
analysis, the Protein Digestibility-Corrected Amino Acid Score (PDCAAS),
and such other pertinent data as may be requested by FNS, except that
prior to November 7, 1994, manufacturers may submit protein efficiency
ratio analysis in lieu of the PDCAAS. This information is to be
forwarded to: Director, Nutrition and Technical Services Division, Food
and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center
Drive, room 607, Alexandria, VA 22302. All laboratory analyses are to be
performed by independent or other laboratories acceptable to FNS. (FNS
prefers an independent laboratory.) All laboratories shall retain the
``raw'' laboratory data for a period of 1 year. Such information shall
be made available to FNS upon request. Manufacturers must notify FNS if
there is a change in the protein portion of their product after the
original testing. Manufacturers who report such a change in protein in a
previously approved product must submit protein data in accordance with
the method specified in this paragraph.
3. The product should not be designed in such a manner that would
require it to be classified as a Dietary Supplement as described by the
Food and Drug Administration (FDA) in 21 CFR part 105. To be accepted by
FNS, enriched macaroni products with fortified protein must conform to
the following requirements:
(a)(1) Each of these foods is produced by drying formed units of
dough made with one or more of the milled wheat ingredients designated
in 21 CFR 139.110(a) and 139.138(a), and other ingredients to enable the
finished food to meet the protein requirements set out in paragraph
3.(a)(2)(i) under Enriched Macaroni Products with Fortified Protein in
this appendix. Edible protein sources, including food grade flours or
meals made from nonwheat cereals or from oilseeds, may be used. Vitamin
and mineral enrichment nutrients are added to bring the food into
conformity with the requirements of paragraph (b) under Enriched
Macaroni Products with Fortified Protein in this appendix. Safe and
suitable ingredients, as provided for in paragraph (c) under Enriched
Macaroni Products with Fortified Protein in this appendix, may be added.
The proportion of the milled wheat ingredient is larger than the
proportion of any other ingredient used.
(2) Each such finished food, when tested by the methods described in
the pertinent sections of ``Official Methods of Analysis of the AOAC
International,'' (formerly the Association of Official Analytical
Chemists), 15th Ed. (1990) meets the following specifications.
[[Page 68]]
This publication is incorporated by reference in accordance with 5
U.S.C. 552(a) and 1 CFR part 51. Copies may be obtained from the AOAC
International, 2200 Wilson Blvd., suite 400, Arlington, VA 22201-3301.
This publication may be examined at the Food and Nutrition Service,
Nutrition and Technical Services Division, 3101 Park Center Drive, room
607, Alexandria, Virginia 22302 or the Office of the Federal Register,
800 North Capital Street, NW., suite 700, Washington, DC.
(i) The protein content (N x 6.25) is not less than 20 percent by
weight (on a 13 percent moisture basis) as determined by the appropriate
method of analysis in the AOAC manual cited in (a)(2) under Enriched
Macaroni Products with Fortified Protein in this appendix. The protein
quality is not less than 95 percent that of casein as determined on a
dry basis by the PDCAAS method as described below:
(A) The PDCAAS shall be determined by the methods given in sections
5.4.1, 7.2.1. and 8.0 as described in ``Protein Quality Evaluation,
Report of the Joint FAO/WHO Expert Consultation on Protein Quality
Evaluation,'' Rome, 1990, as published by the Food and Agriculture
Organization (FAO) of the United Nations/World Health Organization
(WHO). This report is incorporated by reference in accordance with 5
U.S.C. 552(a) and 1 CFR part 51. Copies of this report may be obtained
from the Nutrition and Technical Services Division, Food and Nutrition
Service, 3101 Park Center Drive, room 607, Alexandria, Virginia 22302.
This report may also be inspected at the Office of the Federal Register
800 North Capitol St., NW., suite 700, Washington, DC.
(B) The standard used for assessing protein quality in the PDCAAS
method is the amino acid scoring pattern established by FAO/WHO and
United Nations University (UNU) in 1985 for preschool children 2 to 5
years of age which has been adopted by the National Academy of Sciences,
Recommended Dietary Allowances (RDA), 1989.
(C) To calculate the PDCAAS for an individual food, the test food
must be analyzed for proximate analysis and amino acid composition
according to AOAC methods.
(D) The PDCAAS may be calculated using FDA's limited data base of
published true digestibility values (determined using humans and rats).
The true digestibility values contained in the WHO/FAO report referenced
in paragraph 3.(a)(2)(i)(A) under Enriched Macaroni Products with
Fortified Protein in this appendix may also be used. If the
digestibility of the protein is not available from these sources it must
be determined by a laboratory according to methods in the FAO/WHO report
(sections 7.2.1 and 8.0).
(E) The most limiting essential amino acid (that is, the amino acid
that is present at the lowest level in the test food compared to the
standard) is identified in the test food by comparing the levels of
individual amino acids in the test food with the 1985 FAO/WHO/UNU
pattern of essential amino acids established as a standard for children
2 to 5 years of age.
(F) The value of the most limiting amino acid (the ratio of the
amino acid in the test food over the amino acid value from the pattern)
is multiplied by the percent of digestibility of the protein. The
resulting number is the PDCAAS.
(G) The PDCAAS of food mixtures must be calculated from data for the
amino acid composition and digestibility of the individual components by
means of a weighted average procedure. An example for calculating a
PDCAAS for a food mixture of varying protein sources is shown in section
8.0 of the FAO/WHO report cited in paragraph 3.(a)(2)(i)(A) under
Enriched Macaroni Products with Fortified Protein in this appendix.
(H) For the purpose of this regulation, each 100 grams of the
product (on a 13 percent moisture basis) must contain protein in amounts
which is equivalent to that provided by 20 grams of protein with a
quality of not less than 95 percent casein. The equivalent grams of
protein required per 100 grams of product (on a 13 percent moisture
basis) would be determined by the following equation:
[GRAPHIC] [TIFF OMITTED] TR07OC94.022
X=grams of protein required per 100 grams of product
a=20 grams (amount of protein if casein)
b=.95 [95% x 1 (PDCAAS of casein)
c=PDCAAS for protein used in formulation
(ii) The total solids content is not less than 87 percent by weight
as determined by the methods described in the ``Official Methods of
Analysis of the AOAC International'' cited in paragraph (a)(2) under
Enriched Macaroni Products with Fortified Protein in this appendix.
(b)(1) Each pound of food covered by this section shall contain 5
milligrams of thiamine, 2.2 milligrams of riboflavin, 34 milligrams of
niacin or niacinamide, and 16.5 milligrams of iron.
(2) Each pound of such food may also contain 625 milligrams of
calcium.
(3) Only harmless and assimilable forms of iron and calcium may be
added. The enrichment nutrients may be added in a harmless carrier used
only in a quantity necessary to effect a uniform distribution of the
nutrients in the finished food. Reasonable overages, within the limits
of good manufacturing practice, may be used to assure that the
prescribed levels of the vitamins and mineral(s) in paragraphs (b)(1)
and (2) under Enriched Macaroni Products with Fortified Protein in this
appendix are maintained throughout the
[[Page 69]]
expected shelf life of the food under customary conditions of
distribution.
(c) Ingredients that serve a useful purpose such as to fortify the
protein or facilitate production of the food are the safe and suitable
ingredients referred to in paragraph (a) under Enriched Macaroni
Products with Fortified Protein in this appendix. This does not include
color additives, artificial flavorings, artificial sweeteners, chemical
preservatives, or starches. Ingredients deemed suitable for use by this
paragraph are added in amounts that are not in excess of those
reasonably required to achieve their intended purposes. Ingredients are
deemed to be safe if they are not food additives within the meaning of
section 201(s) of the Federal Food, Drug and Cosmetic Act, or in case
they are food additives if they are used in conformity with regulations
established pursuant to section 409 of the act.
(d)(1) The name of any food covered by this section is ``Enriched
Wheat ________________ Macaroni Product with Fortified Protein'', the
blank being filled in with appropriate word(s) such as ``Soy'' to show
the source of any flours or meals used that were made from non-wheat
cereals or from oilseeds. In lieu of the words ``Macaroni Product'' the
words ``Macaroni'', ``Spaghetti'', or ``Vermicelli'' as appropriate, may
be used if the units conform in shape and size to the requirements of 21
CFR 139.110 (b), (c), or (d).
(2) When any ingredient not designated in the part of the name
prescribed in paragraph (d)(1) under Enriched Macaroni Products with
Fortified Protein in this appendix, is added in such proportion as to
contribute 10 percent or more of the quantity of protein contained in
the finished food, the name shall include the statement ``Made with
________________'', the blank being filled in with the name of each such
ingredient, e.g. ``Made with nonfat milk''.
(3) When, in conformity with paragraph (d)(1) or (d)(2) under
Enriched Macaroni Products with Fortified Protein in this appendix, two
or more ingredients are listed in the name, their designations shall be
arranged in descending order of predominance by weight.
(4) If a food is made to comply with a section of 21 CFR part 139,
but also meets the compositional requirements of the Enriched Macaroni
with Fortified Protein Appendix, it may alternatively bear the name set
out in the other section.
(e) Each ingredient used shall declare its common name as required
by the applicable section of 21 CFR part 101. In addition, the
ingredients statement shall appear in letters not less than one half the
size of that required by 21 CFR 101.105 for the declaration of net
quantity of contents, and in no case less than one-sixteenth of an inch
in height.
Vegetable Protein Products
1. Schools, institutions, and service institutions may use a
vegetable product, defined in paragraph 2, as a food component meeting
the meal requirements specified in Sec. 210.10 or Sec. 210.10a,
whichever is applicable, Sec. 225.20 or Sec. 226.20 under the following
terms and conditions:
(a) The vegetable protein product must be prepared in combination
with raw or cooked meat, poultry or seafood and shall resemble as well
as substitute, in part, for one of these major protein foods. Substitute
refers to a vegetable protein product whose presence in another food
results in the presence of a smaller amount of meat, poultry or seafood
than is customarily expected or than appears to be present in that food.
Examples of items in which a vegetable protein product may be used
include, but are not limited to, beef patties, beef crumbles, pizza
topping, meat loaf, meat sauce, taco filling, burritos, and tuna salad.
(b) Vegetable protein products may be used in the dry form
(nonhydrated), partially hydrated or fully hydrated form in combination
with meat, poultry or seafood. The moisture content of the fully
hydrated vegetable protein product shall be such that the mixture will
have a minimum of 18 percent protein by weight or equivalent amount for
the dry or partially hydrated form (based on the level that would be
provided if the product were fully hydrated).
(c) The quantity, by weight, of the fully hydrated vegetable protein
product must not exceed 30 parts to 70 parts meat, poultry or seafood on
an uncooked basis. The quantity by weight of the dry or partially
hydrated vegetable protein product must not exceed a level equivalent to
the amount (dry weight) used in the fully hydrated product at the 30
percent level of substitution. The dry or partially hydrated product's
replacement of meat, poultry or seafood will be based on the level of
substitution it would provide if it were fully hydrated.
(d) A vegetable protein product may be used to satisfy the meat/meat
alternate requirement when combined with meat, poultry or seafood and
when it meets the other requirements of this section. The combination of
the vegetable protein product and meat, poultry or seafood may meet all
or part of the meat/meat alternate requirement specified in Sec. 210.10
or Sec. 210.10a, whichever is applicable, Sec. 225.20 or Sec. 226.20.
(e) The contribution vegetable protein products make toward the
meat/meat alternate requirement specified in Sec. 210.10 or
Sec. 210.10a, whichever is applicable, Sec. 225.20, or Sec. 226.20 shall
be determined on the basis of the preparation yield of the meat, poultry
or seafood with which it is combined. When computing the preparation
yield of a product
[[Page 70]]
containing meat, poultry or seafood and vegetable protein product, the
vegetable protein product shall be evaluated as having the same
preparation yield that is applied to the meat, poultry or seafood it
replaces.
(f) When vegetable protein products are served in a meal with other
alternate foods authorized in appendix A, each individual alternate food
shall be used as specifically directed.
2. A vegetable protein product to be used to resemble and
substitute, in part, for meat, poultry or seafood, as specified in
paragraph 1 must meet the following criteria:
(a) The vegetable protein product (substitute food) shall contain
one or more vegetable protein products which are defined as foods which
are processed so that some portion of the nonprotein constituents of the
vegetable is removed. These vegetable protein products are safe and
suitable edible products produced from vegetable (plant) sources
including, but not limited to soybeans, peanuts, wheat, and corn.
(b) The types of vegetable protein products described in paragraph
2(a)(1) above shall include flour, concentrate, and isolate as defined
below:
(1) When a product contains less than 65 percent protein by weight
calculated on a moisture-free basis excluding added flavors, colors, or
other added substances it is a ``______ flour,'' the blank is to be
filled with the name of the source of the protein, e.g., ``soy'' or
``peanuts.''
(2) When a product contains 65 percent or more but less than 90
percent protein by weight calculated on a moisture-free basis excluding
added flavors,colors, or other added substances, it is a ``______
protein concentrate,'' the blank to be filled with the name of the
source of the protein, e.g., ``soy'' or ``peanut.''
(3) When a product contains 90 percent or more protein by weight
calculated on a moisture-free basis excluding added flavors, colors, or
other added substances, it is a ``protein isolate'' or ``isolated ______
protein,'' the blank to be filled in with the name of the source of the
protein, e.g., ``soy'' or ``peanut.''
(c) Compliance with the moisture and protein provisions of paragraph
2(b) (1), (2), and (3) above shall be determined by the appropriate
methods described in ``Official Methods of Analysis of the Association
of Official Analytical Chemists'' (latest edition).
(d) Vegetable protein products which are used to resemble and
substitute, in part, for meat, poultry or seafood shall be labeled in
conformance with applicable paragraphs of 102.76, tentative final
regulations published by the Food and Drug Administration in the Federal
Register of July 14, 1978 (43 FR 30472). Adopted for the purpose of this
regulation are the following:
(1) The common or usual names for a vegetable protein product used
to resemble and substitute, in part, for meat, poultry or seafood shall
include the term ``vegetable protein product'' and may include the term
``textured'' or ``texturized'' and/or a term e.g., ``granules,'' when
such term is appropriate. The term ``plant'' may be used in the name in
lieu of the term ``vegetable.''
(2) The vegetable protein products used as ingredients in the
substitute food shall be listed by source (e.g., soy or peanut) and
product type (i.e., flour, concentrate, isolate) in the ingredient
statement of the label. Product type(s) listed shall comply with the
appropriate definition(s) set forth in paragraph 2(b) (1), (2) and (3),
and may include a term which accurately describes the physical form of
the product, e.g., ``granules'' when such term is appropriate.
(e) Vegetable protein products which are used to resemble and
substitute, in part, for meat, poultry or seafood shall meet the
following nutritional specifications adopted from
Sec. 102.76(f)(1)(ii)(a)(b) tentative final regulations, published by
the Food and Drug Administration in the Federal Register of July 14,
1978 (43 FR 30472).
(1) The biological quality of the protein in the vegetable protein
product shall be at least 80 percent that of casein, determined by
performing PER assay or unless FNS grants an exception by approving an
alternate test.
(2) The vegetable protein product shall contain at least 18 percent
protein by weight when hydrated or formulated to be used in combination
with meat, poultry or seafood. (``When hydrated or formulated'' refers
to a dry vegetable protein product and the amount of water, fat, oil,
colors, flavors or any other substances which have been added in order
to make the resultant mixture resemble the meat, poultry or seafood).
(3) The vegetable protein product must contain the following levels
of nutrients per gram of protein:
------------------------------------------------------------------------
Nutrient Amount
------------------------------------------------------------------------
Vitamin A (IU)................................................. 13.
Thiamine (milligrams).......................................... 0.02
Riboflavin (milligrams)........................................ .01
Niacin (milligrams)............................................ .3
Pantothenic acid (milligrams).................................. .04
Vitamin B6 (milligrams)........................................ .02
Vitamin B12 (micrograms)....................................... .1
Iron (milligrams).............................................. .15
Magnesium (milligrams)......................................... 1.15
Zinc (milligrams).............................................. .5
Copper (micrograms)............................................ 24.
Potassium (milligrams)......................................... 17.
------------------------------------------------------------------------
(4) Compliance with the nutrient provisions set forth in paragraph
2(e) (1), (2) and (3) above shall be determined by the appropriate
methods described in ``Official Methods of Analysis of the Association
of Official Analytical Chemists'' (latest edition).
[[Page 71]]
(f) Vegetable protein products to be used in the Child Nutrition
Programs to resemble and substitute, in part, for meat, poultry or
seafood that comply with the labeling and nutrition specifications set
forth in paragraph 2(d) (1) and (2) and paragraph 2(e) (1), (2) and (3)
shall bear a label containing the following statement: ``This product
meets USDA-FNS requirements for use in meeting a portion of the meat/
meat alternate requirement of Child Nutrition Programs''. This statement
shall appear on the principal display panel area of the package.
(g) It is recommended that for vegetable protein products to be used
to resemble and substitute, in part, for meat, poultry or seafood and
labeled as specified in paragraph 2(f) above, manufacturers provide
information on the percent protein contained in the dry vegetable
protein product (on an as is basis).
(h) It is recommended that for a vegetable protein product mix,
manufacturers provide information on (1) the amount by weight of dry
vegetable protein product in the package, (2) hydration instructions,
and (3) instructions on how to combine the mix with meat, poultry or
seafood. A vegetable protein product mix is defined as a dry product
containing vegetable protein products that comply with the labeling and
nutritional specifications set forth in paragraphs 2(d) (1) and (2) and
paragraphs 2(e) (1), (2), and (3) along with substantial levels (more
than 5 percent) of seasonings, bread crumbs, flavorings, etc.
3. Schools, institutions, and service institutions may use a
commercially prepared meat, poultry or seafood product combined with
vegetable protein products to meet all or part of the meat/meat
alternate requirement specified in Sec. 210.10 or Sec. 210.10a,
whichever is applicable, Sec. 225.10 or Sec. 226.21 if the product bears
a label containing the statement: ``This item contains vegetable protein
product(s) which is authorized as an alternate food in the Child
Nutrition Programs.'' (Outlined in paragraph 2 above). This would
designate that the vegetable protein product used in the formulation of
the meat, poultry or seafood item complies with the naming and
nutritional specifications set forth in paragraph 2 above. The presence
of this label does not insure the proper level of hydration, ratio of
substitution nor the contribution that the product makes toward meal
pattern requirements for the Child Nutrition Programs.
[51 FR 34874, Sept. 30, 1986; 51 FR 41295, Nov. 14, 1986, as amended at
53 FR 29164, Aug. 2, 1988; 59 FR 51086, Oct. 7, 1994; 60 FR 31216; June
13, 1995; 61 FR 37671, July 19, 1996]
Appendix B to Part 210--Categories of Foods of Minimal Nutritional Value
(a) Foods of minimal nutritional value--Foods of minimal nutritional
value are:
(1) Soda Water--A class of beverages made by absorbing carbon
dioxide in potable water. The amount of carbon dioxide used is not less
than that which will be absorbed by the beverage at a pressure of one
atmosphere and at a temperature of 60 deg. F. It either contains no
alcohol or only such alcohol, not in excess of 0.5 percent by weight of
the finished beverage, as is contributed by the flavoring ingredient
used. No product shall be excluded from this definition because it
contains artificial sweeteners or discrete nutrients added to the food
such as vitamins, minerals and protein.
(2) Water Ices--As defined by 21 CFR 135.160 Food and Drug
Administration Regulations except that water ices which contain fruit or
fruit juices are not included in this definition.
(3) Chewing Gum--Flavored products from natural or synthetic gums
and other ingredients which form an insoluble mass for chewing.
(4) Certain Candies--Processed foods made predominantly from
sweeteners or artifical sweeteners with a variety of minor ingredients
which characterize the following types:
(i) Hard Candy--A product made predominantly from sugar (sucrose)
and corn syrup which may be flavored and colored, is characterized by a
hard, brittle texture, and includes such items as sour balls, fruit
balls, candy sticks, lollipops, starlight mints, after dinner mints,
sugar wafers, rock candy, cinnamon candies, breath mints, jaw breakers
and cough drops.
(ii) Jellies and Gums--A mixture of carbohydrates which are combined
to form a stable gelatinous system of jelly-like character, and are
generally flavored and colored, and include gum drops, jelly beans,
jellied and fruit-flavored slices.
(iii) Marshmallow Candies--An aerated confection composed as sugar,
corn syrup, invert sugar, 20 percent water and gelatin or egg white to
which flavors and colors may be added.
(iv) Fondant--A product consisting of microscopic-sized sugar
crystals which are separated by thin film of sugar and/or invert sugar
in solution such as candy corn, soft mints.
(v) Licorice--A product made predominantly from sugar and corn syrup
which is flavored with an extract made from the licorice root.
(vi) Spun Candy--A product that is made from sugar that has been
boiled at high temperature and spun at a high speed in a special
machine.
[[Page 72]]
(vii) Candy Coated Popcorn--Popcorn which is coated with a mixture
made predominantly from sugar and corn syrup.
(b) Petitioning Procedures--Reconsideration of the list of foods of
minimal nutritional value identified in paragraph (a) of this section
may be pursued as follows:
(1) Any person may submit a petition to FNS requesting that an
individual food be exempted from a category of foods of minimal
nutritional value listed in paragraph (a). In the case of artificially
sweetened foods, the petition must include a statement of the percent of
Reference Daily Intake (RDI) for the eight nutrients listed in
Sec. 210.11(a)(2) ``Foods of minimal nutritional value,'' that the food
provides per serving and the petitioner's source of this information. In
the case of all other foods, the petition must include a statement of
the percent of RDI for the eight nutrients listed in Sec. 210.11(a)(2)
``Foods of minimal nutritional value,'' that the food provides per
serving and per 100 calories and the petitioner's source of this
information. The Department will determine whether or not the individual
food is a food of minimal nutritional value as defined in
Sec. 210.11(a)(2) and will inform the petitioner in writing of such
determination, and the public by notice in the Federal Register as
indicated below under paragraph (b)(3) of this section. In determining
whether an individual food is a food of minimal nutritional value,
discrete nutrients added to the food will not be taken into account.
(2) Any person may submit a petition to FNS requesting that foods in
a particular category of foods be classified as foods of minimal
nutritional value as defined in Sec. 210.11(a)(2). The petition must
identify and define the food category in easily understood language,
list examples of the food contained in the category and include a list
of ingredients which the foods in that category usually contain. If,
upon review of the petition, the Department determines that the foods in
that category should not be classified as foods of minimal nutritional
value, the petitioners will be so notified in writing. If, upon review
of the petition, the Department determines that there is a substantial
likelihood that the foods in that category should be classified as foods
of minimal nutritional value as defined in Sec. 210.11(a)(2), the
Department shall at that time inform the petitioner. In addition, the
Department shall publish a proposed rule restricting the sale of foods
in that category, setting forth the reasons for this action, and
soliciting public comments. On the basis of comments received within 60
days of publication of the proposed rule and other available
information, the Department will determine whether the nutrient
composition of the foods indicates that the category should be
classified as a category of foods of minimal nutritional value. The
petitioner shall be notified in writing and the public shall be notified
of the Department's final determination upon publication in the Federal
Register as indicated under paragraph (b)(3) of this section.
(3) By May 1 and November 1 of each year, the Department will amend
appendix B to exclude those individual foods identified under paragraph
(b)(1) of this section, and to include those categories of foods
identified under paragraph (b)(2) of this section, provided, that there
are necessary changes. The schedule for amending appendix B is as
follows:
------------------------------------------------------------------------
Publication
Actions for publication ---------------------------------------
May November
------------------------------------------------------------------------
Deadline for receipt of Nov. 15........... May 15.
petitions by USDA.
USDA to notify petitioners of Feb. 1............ Aug. 1.
results of Departmental review
and publish proposed rule (if
applicable).
60 Day comment period........... Feb. 1 through Aug. 1 through
Apr. 1. Oct. 1.
Public notice of amendment of May 1............. Nov. 1.
appendix B by.
------------------------------------------------------------------------
(4) Written petitions should be sent to the Chief, Technical
Assistance Branch, Nutrition and Technical Services Division, FNS, USDA,
Alexandria, Virginia 22302, on or before November 15 or May 15 of each
year. Petitions must include all information specified in paragraph (b)
of this appendix and Sec. 220.12(b) (1) or (2) as appropriate.
[53 FR 29147, Aug. 2, 1988, as amended at 54 FR 18465, May 1, 1989; 59
FR 23614, May 6, 1994]
Appendix C to Part 210--Child Nutrition Labeling Program
1. The Child Nutrition (CN) Labeling Program is a voluntary
technical assistance program administered by the Food and Nutrition
Service in conjunction with the Food Safety and Inspection Service
(FSIS), and Agricultural Marketing Service (AMS) of the U.S. Department
of Agriculture, and National Marine Fisheries Service of the U.S.
Department of Commerce (USDC) for the Child Nutrition Programs. This
program essentially involves the review of a manufacturer's recipe or
product formulation to determine the contribution a serving of a
commercially prepared product makes toward meal pattern requirements and
a review of the CN label statement to ensure its accuracy. CN labeled
products must be produced in accordance with all requirements set forth
in this rule.
2. Products eligible for CN labels are as follows:
(a) Commercially prepared food products that contribute
significantly to the meat/
[[Page 73]]
meat alternate component of meal pattern requirements of 7 CFR 210.10 or
210.10a, whichever is applicable, 225.20, and 226.20 and are served in
the main dish.
(b) Juice drinks and juice drink products that contain a minimum of
50 percent full-strength juice by volume.
3. For the purpose of this appendix the following definitions apply:
(a) ``CN label'' is a food product label that contains a CN label
statement and CN logo as defined in paragraph 3 (b) and (c) below.
(b) The ``CN logo'' (as shown below) is a distinct border which is
used around the edges of a ``CN label statement'' as defined in
paragraph 3(c).
[GRAPHIC] [TIFF OMITTED] TC17SE91.000
(c) The ``CN label statement'' includes the following:
(1) The product identification number (assigned by FNS),
(2) The statement of the product's contribution toward meal pattern
requirements of 7 CFR 210.10 or 210.10a, whichever is applicable,
Sec. 220.8 or Sec. 220.8a, whichever is applicable, Secs. 225.20, and
226.20. The statement shall identify the contribution of a specific
portion of a meat/meat alternate product toward the meat/meat alternate,
bread/bread alternate, and/or vegetable/fruit component of the meal
pattern requirements. For juice drinks and juice drink products the
statement shall identify their contribution toward the vegetable/fruit
component of the meal pattern requirements,
(3) Statement specifying that the use of the CN logo and CN
statement was authorized by FNS, and
(4) The approval date.
For example:
[GRAPHIC] [TIFF OMITTED] TC17SE91.001
(d) Federal inspection means inspection of food products by FSIS,
AMS or USDC.
4. Food processors or manufacturers may use the CN label statement
and CN logo as defined in paragraph 3 (b) and (c) under the following
terms and conditions:
(a) The CN label must be reviewed and approved at the national level
by FNS and appropriate USDA or USDC Federal agency responsible for the
inspection of the product.
(b) The CN labeled product must be produced under Federal inspection
by USDA or USDC. The Federal inspection must be performed in accordance
with an approved partial or total quality control program or standards
established by the appropriate Federal inspection service.
(c) The CN label statement must be printed as an integral part of
the product label along with the product name, ingredient listing, the
inspection shield or mark for the appropriate inspection program, the
establishment number where appropriate, and the manufacturer's or
distributor's name and address. The inspection marking for CN labeled
non-meat, non-poultry, and non-seafood products with the exception of
juice drinks and juice drink products is established as follows:
[[Page 74]]
[GRAPHIC] [TIFF OMITTED] TC17SE91.002
(d) Yields for determining the product's contribution toward meal
pattern requirements must be calculated using the Food Buying Guide for
Child Nutrition Programs (Program AID Number 1331).
5. In the event a company uses the CN logo and CN label statement
inappropriately, the company will be directed to discontinue the use of
the logo and statement and the matter will be referred to the
appropriate agency for action to be taken against the company.
6. Products that bear a CN label statement as set forth in paragraph
3(c) carry a warranty. This means that if a food service authority
participating in the Child Nutrition Programs purchases a CN labeled
product and uses it in accordance with the manufacturer's directions,
the school or institution will not have an audit claim filed against it
for the CN labeled product for noncompliance with the meal pattern
requirements of 7 CFR 210.10 or 210.10a, whichever is applicable,
Sec. 220.8 or Sec. 220.8a, whichever is applicable, Secs. 225.20, and
226.20. If a State or Federal auditor finds that a product that is CN
labeled does not actually meet the meal pattern requirements claimed on
the label, the auditor will report this finding to FNS. FNS will prepare
a report of the findings and send it to the appropriate divisions of
FSIS and AMS of the USDA, National Marine Fisheries Services of the
USDC, Food and Drug Administration, or the Department of Justice for
action against the company. Any or all of the following courses of
action may be taken:
(a) The company's CN label may be revoked for a specific period of
time;
(b) The appropriate agency may pursue a misbranding or mislabeling
action against the company producing the product;
(c) The company's name will be circulated to regional FNS offices;
(d) FNS will require the food service program involved to notify the
State agency of the labeling violation.
7. FNS is authorized to issue operational policies, procedures, and
instructions for the CN Labeling Program. To apply for a CN label and to
obtain additional information on CN label application procedures write
to: CN Labels, U.S. Department of Agriculture, Food and Nutrition
Service, Nutrition and Technical Services Division, 3101 Park Center
Drive, Alexandria, Virginia 22302.
[51 FR 34874, Sept. 30, 1986, as amended at 53 FR 29164, Aug. 2, 1988;
60 FR 31216, June 13, 1995]
PART 215--SPECIAL MILK PROGRAM FOR CHILDREN--Table of Contents
Sec.
215.1 General purpose and scope.
215.2 Definitions.
215.3 Administration.
215.4 Payments of funds to States and FNSROs.
215.5 Method of payment to States.
215.6 Use of funds.
215.7 Requirements for participation.
215.8 Reimbursement payments.
215.9 Effective date for reimbursement.
215.10 Reimbursement procedures.
215.11 Special responsibilities of State agencies.
215.12 Claims against schools or child-care institutions.
215.13 Management evaluations and audits.
215.13a Determining eligibility for free milk in child-care
institutions.
215.14 Nondiscrimination.
215.14a Procurement standards.
215.15 Suspension, termination and grant closeout procedures.
215.16 Program information.
215.17 Information collection/recordkeeping--OMB assigned control
numbers.
Authority: 42 U.S.C. 1772, 1779.
Sec. 215.1 General purpose and scope.
This part announces the policies and prescribes the general
regulations with respect to the Special Milk Program for Children, under
the Child Nutrition Act of 1966, as amended, and sets forth the general
requirements for participation in the program. The Act reads in
pertinent part as follows:
Section 3(a)(1) There is hereby authorized to be appropriated for
the fiscal year ending June 30, 1970, and for each succeeding fiscal
year such sums as may be necessary to enable the Secretary of
Agriculture, under such rules and regulations as he may deem in the
public interest, to encourage consumption of fluid milk by children in
the United States in (A) nonprofit schools of high school grade and
under, except as provided in paragraph (2), which do not participate in
a meal service program authorized under this Act or the National School
Lunch Act, and (B) nonprofit nursery schools, child care centers,
settlement houses, summer camps, and similar nonprofit institutions
devoted to the care and training of children, which do not participate
in a meal service program authorized under this Act or the National
School Lunch Act.
(2) The limitation imposed under paragraph (1)(A) for participation
of nonprofit schools in the special milk program shall not
[[Page 75]]
apply to split-session kindergarten programs conducted in schools in
which children do not have access to the meal service program operating
in schools the children attend as authorized under this Act or the
National School Lunch Act (42 U.S.C. 1751 et seq.).
(3) For the purposes of this section ``United States'' means the
fifty States, Guam, the Commonwealth of Puerto Rico, the Virgin Islands,
American Samoa, the Trust Territory of the Pacific Islands, and the
District of Columbia.
(4) The Secretary shall administer the special milk program provided
for by this section to the maximum extent practicable in the same manner
as he administered the special milk program provided for by Pub. L. 89-
642, as amended, during the fiscal year ending June 30, 1969.
(5) Any school or nonprofit child care institution which does not
participate in a meal service program authorized under this Act or the
National School Lunch Act shall receive the special milk program upon
their request.
(6) Children who qualify for free lunches under guidelines
established by the Secretary shall, at the option of the school involved
(or of the local educational agency involved in the case of a public
school) be eligible for free milk upon their request.
(7) For the fiscal year ending June 30, 1975, and for subsequent
school years, the minimum rate of reimbursement for a half-pint of milk
served in schools and other eligible institutions shall not be less than
5 cents per half-pint served to eligible children, and such minimum rate
of reimbursement shall be adjusted on an annual basis each school year
to reflect changes in the Producer Price Index for Fresh Processed Milk
published by the Bureau of Labor Statistics of the Department of Labor.
(8) Such adjustment shall be computed to the nearest one-fourth
cent.
(9) Notwithstanding any other provision of this section, in no event
shall the minimum rate of reimbursement exceed the cost to the school or
institution of milk served to children.
[52 FR 7562, Mar. 12, 1987]
Sec. 215.2 Definitions.
For the purpose of this part, the term:
(a) Act means the Child Nutrition Act of 1966.
(b) Adults means those persons not included under the definition of
children.
(c) [Reserved]
(d) Child and Adult Care Food Program means the program authorized
by section 17 of the National School Lunch Act, as amended.
(e) Child-care institution means any nonprofit nursery school,
child-care center, settlement house, summer camp, service institution
participating in the Summer Food Program for Children pursuant to part
225 of this chapter, institution participating in the Child and Adult
Care Food Program pursuant to part 226 of this chapter, or similar
nonprofit institution devoted to the care and training of children. The
term ``child-care institution'' also includes a nonprofit agency to
which such institution has delegated authority for the operation of a
milk program in the institution. It does not include any institution
falling within the definition of ``School'' in paragraph (v) of this
section.
(e-1) Children means persons under 19 chronological years of age in
child-care institutions as defined in Sec. 215.2(e); or persons under 21
chronological years of age attending schools as defined in
Sec. 215.2(v)(3) and (4) of this part; or students, including students
who are mentally or physically disabled as defined by the State and who
are participating in a school program established for the mentally or
physically disabled, of high school grade or under as determined by the
State educational agency in schools as defined in Sec. 215.2(v)(1) and
(2) of this part.
(e-2) CND means the Child Nutrition Division of the Food and
Nutrition Service of the Department.
(f) FNS means the Food and Nutrition Service of the U.S. Department
of Agriculture.
(g) FNSRO means Food and Nutrition Services Regional Offices, of the
Food and Nutrition Service of the U.S. Department of Agriculture.
(h) Cost of milk means the net purchase price paid by the school or
child-care institution to the milk supplier for milk delivered to the
school or child-care institution. This shall not include any amount paid
to the milk supplier for servicing, rental of or installment purchase of
milk service equipment.
(i) Department means the U.S. Department of Agriculture.
(j) Family means a group of related or nonrelated individuals, who
are not residents of an institution or boarding
[[Page 76]]
house, but who are living as one economic unit.
(j-1) Free milk means milk for which neither the child nor any
member of his family pays or is required to work in the school or child-
care institution or in its food service.
(k) Fiscal year means the period of 12 calendar months beginning
October 1, 1977, and each October 1 of any calendar year thereafter and
ending September 30 of the following calendar year.
(l) Milk means pasteurized fluid types of unflavored or flavored
whole milk, lowfat milk, skim milk, or cultured buttermilk which meet
State and local standards for such milk. In Alaska, Hawaii, American
Samoa, Guam, Puerto Rico, the Trust Territory of the Pacific Islands,
and the Virgin Islands, if a sufficient supply of such types of fluid
milk cannot be obtained, milk shall include reconstituted or recombined
milk. All milk should contain vitamins A and D at levels specified by
the Food and Drug Administration and consistent with State and local
standards for such milk.
(m) National School Lunch Program means the program under which
general cash-for-food assistance and special cash assistance are made
available to schools pursuant to part 210 of this chapter.
(n) Needy children means: (1) Children who attend schools
participating in the Program and who meet the School Food Authority's
eligibility standards for free milk approved by the State agency, or
FNSRO where applicable, under part 245 of this chapter; and (2) children
who attend child-care institutions participating in the Program and who
meet the eligibility standards for free milk approved by the State
agency, or FNSRO where applicable, under Sec. 215.13a of this part.
(o) [Reserved]
(p) Nonpricing program means a program which does not sell milk to
children. This shall include any such program in which children are
normally provided milk, along with food and other services, in a school
or child-care institution financed by a tuition, boarding, camping or
other fee, or by private donations or endowments.
(q) Nonprofit milk service means milk service maintained by or on
behalf of the school or child-care institution for the benefit of the
children, all of the income from which is used solely for the operation
or improvement of such milk service.
(r) Nonprofit means exempt from income tax under the Internal
Revenue Code, as amended.
(s) OA means the Office of Audit of the United States Department of
Agriculture.
(s-1) OIG means the Office of the Inspector General of the
Department.
(t) Pricing program means a program which sells milk to children.
This shall include any such program in which maximum use is made of
Program reimbursement payments in lowering, or reducing to ``zero,''
wherever possible, the price per half pint which children would normally
pay for milk.
(u) Program means the Special Milk Program for Children.
(u-1) Reimbursement means financial assistance paid or payable to
participating schools and child-care institutions for milk served to
eligible children.
(v) School means: (1) An educational unit of high school grade or
under, recognized as part of the educational system in the State and
operating under public or nonprofit private ownership in a single
building or complex of buildings; (2) any public or nonprofit private
classes of preprimary grade when they are conducted in the
aforementioned schools; (3) any public or nonprofit private residential
child care institution, or distinct part of such institution, which
operates principally for the care of children, and, if private, is
licensed to provide residential child care services under the
appropriate licensing code by the State or a subordinate level of
government, except for residential summer camps which participate in the
Summer Food Service Program for Children, Job Corps centers funded by
the Department of Labor, and private foster homes. The term residential
child care institutions includes, but is not limited to: Homes for the
mentally, emotionally or physically impaired, and unmarried mothers and
their infants; group homes; halfway houses; orphanages; temporary
shelters
[[Page 77]]
for abused children and for runaway children; long-term care facilities
for chronically ill children; and juvenile detention centers. A long-
term care facility is a hospital, skilled nursing facility, intermediate
care facility, or distinct part thereof, which is intended for the care
of children confined for 30 days or more; or (4) with respect to the
Commonwealth of Puerto Rico, nonprofit child care centers certified as
such by the Governor of Puerto Rico.
(w) School Breakfast Program means the program authorized by section
4 of the Child Nutrition Act of 1966, as amended.
(w-1) School Food Authority means the governing body which is
responsible for the administration of one or more schools and which has
the legal authority to operate a milk program therein. The term ``School
Food Authority'' also includes a nonprofit agency to which such
governing body has delegated authority for the operation of a milk
program in a school.
(x) School year means the period of 12 calendar months beginning
July 1, 1977, and each July 1 of any calendar year thereafter and ending
June 30 of the following calendar year.
(x-1) 7 CFR part 3015 means the Uniform Federal Assistance
Regulations published by the Department to implement OMB Circulars A-21,
A-87, A-102, A-110, and A-122; and Executive Order 12372. (For
availability of OMB Circulars referenced in this definition, see 5 CFR
1310.3.)
(x-2) 7 CFR part 3017 means the Department's regulation to implement
Executive Order 12549, covering governmentwide rules on suspension and
debarment as well as The Drug Free Workplace Act of 1988.
(x-3) 7 CFR part 3018 means the Department's Common Rule regarding
Governmentwide New Restrictions on Lobbying. Part 3018 implements the
requirements established by section 319 of the 1990 Appropriations Act
for the Department of Interior and Related Agencies (Pub. L. 101-121).
(x-4) 7 CFR part 3052 means the Department's regulations
implementing OMB Circular A-133, ``Audits of State, Local Governments,
and Non-Profit Organizations.'' (For availability of OMB Circulars
referenced in this definition, see 5 CFR 1310.3.)
(x-5) Split-session means an educational program operating for
approximately one-half of the normal school day.
(y) State means any of the 50 States, District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, and, as
applicable, American Samoa and the Commonwealth of the Northern
Marianas.
(z) State agency means the State educational agency or any other
State agency that has been designated by the Governor or other
appropriate executive or legislative authority of the State and approved
by the Department to administer the Program.
(aa) Summer Food Service Program for Children means the program
authorized by section 13 of the National School Lunch Act, as amended.
(Sec. 11, Pub. L. 95-166, 91 Stat. 1337 (42 U.S.C. 1772, 1753, 1766;
sec. 10(a), Pub. L. 95-627, 92 Stat. 3623 (42 U.S.C. 1760; sec. 10(d)),
Pub. L. 95-627, 92 Stat. 3624 (42 U.S.C. 1757); sec. 14, Pub. L. 95-627,
92 Stat. 3625-3626; sec. 205, Pub. L. 96-499, The Omnibus Reconciliation
Act of 1980, 94 Stat. 2599; secs. 807 and 808, Pub. L. 97-35, 95 Stat.
521-535 (42 U.S.C. 1772, 1784, 1760))
[32 FR 12587, Aug. 31, 1967, as amended at 64 FR 50741, Sept. 20, 1999]
Editorial Note: For Federal Register citations affecting
Sec. 215.2, see the List of CFR Sections Affected appearing in the
Finding Aids section of this volume.
Sec. 215.3 Administration.
(a) Within the Department, FNS shall act on behalf of the Department
in the administration of the Program. Within FNS, CND shall be
responsible for Program administration.
(b) Within the States, to the extent practicable and permissible
under State law, responsibility for the administration of the Program in
schools and child-care institutions shall be in the educational agency
of the State: Provided, however, That another State agency, upon request
by the Governor or other appropriate State executive or legislative
authority, may be approved to administer the Program in schools as
defined in Sec. 215.2(v)(3) or Sec. 215.2(v)(4) or in child-care
institutions.
[[Page 78]]
(c) FNSRO shall administer the Program in any school as defined in
Sec. 215.2(v)(1), Sec. 215.2(v)(2) or Sec. 215.2(v)(3) or in any child-
care institution as defined in Sec. 215.2(e) wherein the State agency is
not permitted by law to disburse Federal funds paid to it under the
Program; Provided, however, That FNSRO shall also administer the Program
in all other schools and child-care institutions which have been under
continuous FNS administration since October 1, 1980 unless the
administration of such schools and institutions is assumed by a State
agency. References in this part to ``FNSRO where applicable'' are to
FNSRO as the agency administering the Program to schools or child-care
institutions within certain States.
(d) Each State agency desiring to take part in the Program shall
enter into a written agreement with the Department for the
administration of the Program in the State in accordance with the
provisions of this part. Such agreement shall cover the operation of the
Program during the period specified therein and may be extended at the
option of the Department.
(Secs. 804, 816 and 817, Pub. L. 97-35; 95 Stat. 521-535 (42 U.S.C.
1753, 1756, 1759, 1771 and 1785))
[Amdt. 14, 41 FR 31174, July 27, 1976, as amended by Amdt. 24, 47 FR
14133 Apr. 2, 1982; Amdt. 36, 54 FR 2989, Jan. 23, 1989]
Sec. 215.4 Payments of funds to States and FNSROs.
(a) For each fiscal year, the Secretary shall make payments to each
State agency at such times as he may determine from the funds
appropriated for Program reimbursement. Subject to Sec. 215.11(c)(2),
the total of these payments for each State for any fiscal year shall be
limited to the amount of reimbursement payable to School Food
Authorities and child care institutions under Sec. 215.8 of this part
for the total number of half-pints of milk served under the Program to
eligible children from October 1 to September 30.
(b) Each State agency shall be responsible for controlling Program
reimbursement payments so as to keep within the funds made available to
it, and for the timely reporting to FNS of the number of half pints of
milk actually served. The Secretary shall increase or decrease the
available level of funding by adjusting the State agency's Letter of
Credit when appropriate.
(Pub. L. 97-370, 96 Stat. 1806)
[Amdt. 14, 41 FR 31174, July 27, 1976, as amended by Amdt. 30, 49 FR
18986, May 4, 1984]
Sec. 215.5 Method of payment to States.
(a) Funds to be paid to any State shall be made available by means
of Letters of Credit issued by FNS in favor of the State agency. The
State agency shall:
(1) Obtain funds needed to reimburse School Food Authorities and
child-care institutions through presentation by designated State
officials of a Payment Voucher on Letter of Credit (Treasury Form GFO
7578) in accordance with procedures prescribed by FNS and approved by
the U.S. Treasury Department; (2) submit requests for funds only at such
times and in such amounts as will permit prompt payment of claims; (3)
use the funds received from such requests without delay for the purpose
for which drawn. Notwithstanding the foregoing provisions, if funds are
made available by Congress for the operation of the Program under a
continuing resolution, Letters of Credit shall reflect only the amount
available for the effective period of the resolution.
(b) [Reserved]
(c) The State agency shall release to FNS any Federal funds made
available to it under the Program which are unobligated at the end of
each fiscal year. Release of funds by the State agency shall be made as
soon as practicable but in no event later than 30 days following demand
by FNSRO, and shall be reflected by a related adjustment in the State
agency's Letter of Credit.
[Amdt. 13, 39 FR 28416, Aug. 7, 1974, as amended by Amdt. 14, 41 FR
31174, July 27, 1976]
Sec. 215.6 Use of funds.
(a) Federal funds made available under the Program shall be used to
encourage the consumption of milk through reimbursement payments to
schools and child-care institutions in
[[Page 79]]
connection with the purchase and service of milk to children in
accordance with the provisions of this part: Provided, however, That,
with the approval of FNS, any State agency, or FNSRO where applicable,
may reserve for use in carrying out special developmental projects an
amount equal to not more than 1 per centum of the Federal funds so made
available for any fiscal year.
(b) Whoever embezzles, willfully misapplies, steals, or obtains by
fraud any funds, assets, or property provided under this part, whether
received directly or indirectly from the Department, shall: (1) If such
funds, assets, or property are of a value of $100 or more, be fined not
more than $25,000 or imprisoned not more than 5 years or both; or (2) if
such funds, assets, or property are of a value of less than $100, be
fined not more than $1,000 or imprisoned not more than one year or both.
(c) Whoever receives, conceals, or retains to his use or gain funds,
assets, or property provided under this part, whether received directly
or indirectly from the Department, knowing such funds, assets, or
property have been embezzled, willfully misapplied, stolen, or obtained
by fraud, shall be subject to the same penalties provided in paragraph
(b) of this section.
(Sec. 10(a), Pub. L. 95-627, 92 Stat. 3623 (42 U.S.C. 1760; sec.
10(d)(3), Pub. L. 95-627, 92 Stat. 3624 (42 U.S.C. 1757); sec. 14, Pub.
L. 95-627, 92 Stat. 3625-3626; 44 U.S.C. 3506))
[Amdt. 14, 41 FR 31174, July 27, 1976, as amended by Amdt. 18, 44 FR
37898, June 29, 1979; 47 FR 746, Jan. 7, 1982; 64 FR 50741, Sept. 20,
1999]
Sec. 215.7 Requirements for participation.
(a) Any school or nonprofit child care institution shall receive the
Special Milk Program upon request provided it does not participate in a
meal service program authorized under the Child Nutrition Act of 1966 or
the National School Lunch Act; except that schools with such meal
service may receive the Special Milk Program upon request only for the
children attending split-session kindergarten programs who do not have
access to the meal service. Each School Food Authority or child-care
institution shall make written application to the State agency, or FNSRO
where applicable, for any school or child-care institution in which it
desires to operate the Program, if such school or child-care institution
did not participate in the Program in the prior fiscal year.
(b) Any School Food Authority or child care institution
participating in the Program may elect to serve free milk to children
eligible for free meals. Upon application for the Program, each School
Food Authority or child care institution:
(1) Shall be required by the State agency, or FNSRO where
applicable, to state whether or not it wishes to provide free milk in
the schools or institutions participating under its jurisdiction and
(2) If it so wishes to provide free milk, shall also submit for
approval a free milk policy statement which, if for a school, shall be
in accordance with part 245 of this chapter or, if for a child care
institution, shall be in accordance with Sec. 215.13a of this part.
(c) The application shall include information in sufficient detail
to enable the State agency, or FNSRO where applicable, to determine
whether the School Food Authority or child-care institution is eligible
to participate in the Program and extent of the need for Program
payments.
(d) Each school food authority or child care institution approved to
participate in the program shall enter into a written agreement with the
State agency or FNSRO, as applicable, that may be amended as necessary.
Nothing in the preceding sentence shall be construed to limit the
ability of the State agency to suspend or terminate the agreement in
accordance with Sec. 215.15. If a single State agency administers any
combination of the Child Nutrition Programs, that State agency shall
provide each SFA with a single agreement with respect to the operation
of those programs. Such agreement shall provide that the School Food
Authority or child-care institution shall, with respect to participating
schools and child-care institutions under its jurisdiction:
(1) Operate a nonprofit milk service. However, school food
authorities may use facilities, equipment, and personnel supported with
funds provided to a school food authority under this
[[Page 80]]
part to support a nonprofit nutrition program for the elderly, including
a program funded under the Older Americans Act of 1965 (42 U.S.C. 3001
et seq.).
(2) If electing to provide free milk (i) serve milk free to all
eligible children, at times that milk is made available to nonneedy
children under the Program; and (ii) make no discrimination against any
needy child because of his inability to pay for the milk.
(3) Comply with the requirements of the Department's regulations
respecting nondiscrimination (7 CFR part 15);
(4) Claim reimbursement only for milk as defined in this part and in
accordance with the provisions of Sec. 215.8 and Sec. 215.10;
(5) Submit Claims for Reimbursement in accordance with Sec. 215.10
of this part and procedures established by the State agency or FNSRO
where applicable;
(6) Maintain a financial management system as prescribed by the
State agency, or FNSRO where applicable;
(7) Upon request, make all records pertaining to its milk program
available to the State agency and to FNS or OA for audit and
administrative review, at any reasonable time and place. Such records
shall be retained for a period of three years after the end of the
fiscal year to which they pertain, except that, if audit findings have
not been resolved, the records shall be retained beyond the three-year
period as long as required for the resolution of the issues raised by
the audit;
(8) Retain the individual applications for free milk submitted by
families for a period of three years after the end of the fiscal year to
which they pertain, except that, if audit findings have not been
resolved, the records shall be retained beyond the three-year period as
long as required for the resolution of the issues raised by the audit.
(e) State requirements. Nothing contained in this part shall prevent
a State agency from imposing additional requirements for participation
in the Program which are not inconsistent with the provision of this
part.
(Sec. 11, Pub. L. 95-166, 91 Stat. 1337 (42 U.S.C. 1772, 1753, 1766);
sec. 5, Pub. L. 95-627, 92 Stat. 3619 (42 U.S.C. 1772); secs. 801, 803,
812; Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C. 1753, 1759(a), 1773,
1758); 44 U.S.C. 3506)
[Amdt. 13, 39 FR 28416, Aug. 7, 1974, as amended by Amdt. 14, 41 FR
31174, July 27, 1976; Amdt. 16, 43 FR 1059, Jan. 6, 1978; 44 FR 10700,
Feb. 23, 1979; Amdt. 17, 44 FR 33047, June 8, 1979; 46 FR 51635, Oct.
20, 1981; 47 FR 745, Jan. 7, 1982; Amdt. 30, 49 FR 18986, 18987, May 4,
1984; 52 FR 7562, Mar. 12, 1987; 52 FR 15298, Apr. 28, 1987; 64 FR
50741, Sept. 20, 1999]
Sec. 215.8 Reimbursement payments.
(a) [Reserved]
(b)(1) The rate of reimbursement per half-pint of milk purchased and
(i) served in nonpricing programs to all children; (ii) served to all
children in pricing programs by institutions and School Food Authorities
not electing to provide free milk; and (iii) served to children other
than needy children in pricing programs by institutions and School Food
Authorities electing to provide free milk shall be the rate announced by
the Secretary for the applicable school year. However, in no event shall
the reimbursement for each half-pint (236 ml.) of milk served to
children exceed the cost of the milk to the school or child care
institution.
(2) The rate of reimbursement for milk purchased and served free to
needy children in pricing programs by institutions and School Food
Authorities electing to provide free milk shall be the average cost of
milk, i.e., the total cost of all milk purchased during the claim
period, divided by the total number of purchased half-pints.
(c) Schools and child-care institutions having pricing programs
shall use
[[Page 81]]
the reimbursement payments received to reduce the price of milk to
children.
(Sec. 11, Pub. L. 95-166, 91 Stat. 1337 (42 U.S.C. 1772, 1753, 1766);
sec. 5, Pub. L. 95-627, 92 Stat. 3619 (42 U.S.C. 1772); Omnibus
Reconciliation Act of 1980, sec. 209, Pub. L. 96-499, 94 Stat. 2599;
secs. 807 and 808, Pub. L. 97-35, 95 Stat. 521-535, 42 U.S.C. 1772,
1784, 1760; secs. 805 and 819, Pub. L. 97-35, 95 Stat. 521-535 (42
U.S.C. 1773))
[Amdt. 13, 39 FR 28416, Aug. 7, 1974, as amended by Amdt. 16, 43 FR
1060, Jan. 6, 1978; 44 FR 10700, Feb. 23, 1979; Amdt. 17, 44 FR 33047,
June 8, 1979; 46 FR 51365, Oct. 20, 1981; Amdt. 23, 47 FR 14134, Apr. 2,
1982]
Sec. 215.9 Effective date for reimbursement.
(a) A State Agency, or FNSRO where applicable, may grant written
approval to begin operations under the Program prior to the receipt of
the application from the School Food Authority or child-care
institution. Such written approval shall be attached to the subsequently
filed application, and the agreement executed by the School Food
Authority or child-care institution shall be effective from the date
upon which the School Food Authority or child-care institution was
authorized to begin operations: Provided, however, That such effective
date shall not be earlier than the calendar month preceding the calendar
month in which the agreement is executed by the State Agency or by the
Department.
(b) Reimbursement payments pursuant to Sec. 215.8 shall be made for
milk purchased and served to children at any time during the effective
period of an agreement between a School Food Authority or child care
institution and the State agency or the Department.
(Sec. 11, Pub. L. 95-166, 91 Stat. 1337 (42 U.S.C. 1772, 1753, 1766))
[32 FR 12587, Aug. 31, 1967, as amended by Amdt. 5, 37 FR 14686, July
22, 1972; Amdt. 13, 39 FR 28417, Aug. 7, 1974; Amdt. 16, 43 FR 1060,
Jan. 6, 1978; 44 FR 10700, Feb. 23, 1979]
Sec. 215.10 Reimbursement procedures.
(a) To be entitled to reimbursement under this part, each School
Food Authority shall submit to the State agency, or FNSRO where
applicable, a monthly Claim for Reimbursement.
(b) Claims for Reimbursement shall include data in sufficient detail
to justify the reimbursement claimed and to enable the State agency to
provide the Reports of School Program Operations required under
Sec. 215.11(c)(2). Unless otherwise approved by FNS, the Claim for
Reimbursement for any month shall include only milk served in that month
except if the first or last month of Program operations for any year
contains 10 operating days or less, such month may be added to the Claim
for Reimbursement for the appropriate adjacent month; however, Claims
for Reimbursement may not combine operations occurring in two fiscal
years. If a single State agency administers any combination of the Child
Nutrition Programs, the SFA shall be able to use a common claim form
with respect to claims for reimbursement for meals served under those
programs. A final Claim for Reimbursement shall be postmarked and/or
submitted to the State agency, or FNSRO where applicable, not later than
60 days following the last day of the full month covered by the claim.
State agencies may establish shorter deadlines at their discretion.
Claims not postmarked and/or submitted within 60 days shall not be paid
with Program funds unless FNS determines that an exception should be
granted. The State agency, or FNSRO where applicable, shall promptly
take corrective action with respect to any Claim for Reimbursement as
determined necessary through its claim review process or otherwise. In
taking such corrective action, State agencies may make upward
adjustments in Program funds claimed on claims filed within the 60 day
deadline if such adjustments are completed within 90 days of the last
day of the claim month and are reflected in the final Report of School
Program Operations (FNS-10) for the claim month which is required under
Sec. 215.11(c)(2). Upward adjustments in Program funds claimed which are
not reflected in the final FNS-10 for the claim month shall not be made
unless authorized by FNS. Downward adjustments in Program funds claimed
shall always be made, without FNS authorization, regardless of when it
is determined that such adjustments are necessary.
[[Page 82]]
(c) [Reserved]
(d) In submitting a Claim for Reimbursement, each School Food
Authority or child-care institution shall certify that the claim is true
and correct; that records are available to support the claim; that the
claim is in accordance with the existing agreement; and that payment
therefor has not been received.
(e) Milk served to adults is not eligible for reimbursement.
(f) Any School Food Authority or child care institution which
operates both a nonpricing and pricing milk program in the same school
or child care institution, may elect to claim reimbursement for:
(1) All milk purchased and served to children under the Program at
the nonpricing rate prescribed in Sec. 215.8(b) (1), or (2) only milk
purchased and served to children in the pricing program at the rates
prescribed in Sec. 215.8(b) (1) and (2) for pricing programs.
(Sec. 11, Pub. L. 95-166, 91 Stat. 1337 (42 U.S.C. 1772, 1753, 1766);
Pub. L. 97-370, 96 Stat. 1806)
[Amdt. 13, 39 FR 28417, Aug. 7, 1974, as amended by Amdt. 14, 41 FR
31175, July 27, 1976; Amdt. 16, 43 FR 1060, Jan. 6, 1978; 44 FR 10700,
Feb. 23, 1979; 45 FR 82622, Dec. 16, 1980; 48 FR 20896, May 10, 1983;
Amdt. 30, 49 FR 18986, May 4, 1984; 64 FR 50742, Sept. 20, 1999]
Sec. 215.11 Special responsibilities of State agencies.
(a) [Reserved]
(b) Program assistance. Each State agency, or FNSRO where
applicable, shall provide Program assistance, as follows:
(1) Consultive, technical, and managerial personnel to administer
the Program and monitor performance of schools and child-care
institutions and to measure progress toward achieving Program goals.
(2) Visits to participating schools and child-care institutions to
ensure compliance with Program regulations and with the Department's
nondiscrimination regulations (part 15 of this title), issued under
title VI of the Civil Rights Act of 1964. State agencies shall conduct
reviews of schools participating in the Program for compliance with the
provisions of this part when such schools are being reviewed under the
provisions identified under Sec. 210.18(i) of this title. Compliance
reviews of participating schools shall focus on the reviewed school's
compliance with the required certification, counting and milk service
procedures. School food authorities may appeal a denial of all or a part
of the Claim for Reimbursement or withholding of payment arising from
review activity conducted by the State agency under Sec. 210.18 of this
title or by FNS under Sec. 210.30(d)(2) of this title. Any such appeal
shall be subject to the procedures set forth under Sec. 210.18(q) of
this title or Sec. 210.30(d)(3) of this title, as appropriate.
(3) Documentation of such Program assistance shall be maintained on
file by the State agency, or FNSRO where applicable.
(c) Records and reports. (1) Each State agency shall maintain
Program records as necessary to support the reimbursement payments made
to child care institutions or School Food Authorities under Sec. 215.8
and Sec. 215.10 and the reports submitted to FNS under
Sec. 215.11(c)(2). The records may be kept in their original form or on
microfilm, and shall be retained for a period of three years after the
date of submission of the final Financial Status Report for the fiscal
year, except that if audit findings have not been resolved, the records
shall be retained beyond the three-year period as long as required for
the resolution of the issues raised by the audit.
(2) Each State agency shall submit to FNS a final Report of School
Program Operations (FNS-10) for each month which shall be limited to
claims submitted in accordance with Sec. 215.10(b) and which shall be
postmarked and/or submitted no later than 90 days following the last day
of the month covered by the report. States shall not receive Program
funds for any month for which the final report is not submitted within
this time limit unless FNS grants an exception. Upward adjustments to a
State agency's report shall not be made after 90 days from the month
covered by the report unless authorized by FNS. Downward adjustments
shall always be made, without FNS authorization, regardless of when it
is determined that such adjustments
[[Page 83]]
are necessary. Adjustments shall be reported to FNS in accordance with
procedures established by FNS. Each State agency shall also submit to
FNS a quarterly Financial Status Report (SF-269) on the use of Program
funds. Such reports shall be postmarked and/or submitted no later than
30 days after the end of each fiscal year quarter. Obligations shall be
reported only for the fiscal year in which they occur. A final Financial
Status Report for each fiscal year shall be postmarked and/or submitted
to FNS within 120 days after the end of the fiscal year. FNS shall not
be responsible for reimbursing unpaid program obligations reported later
than 120 days after the close of the fiscal year in which they were
incurred.
(d) Compliance. State agencies, or FNSROs where applicable, shall
require School Food Authorities and child-care institutions to comply
with applicable provisions of this part.
(e) Investigations. Each State Agency shall promptly investigate
complaints received or irregularities noted in connection with the
operation of the Program and shall take appropriate action to correct
any irregularities. State Agencies shall maintain on file evidence of
such investigations and actions. The Office of Investigation of the
Department (OI) shall make investigations at the request of the State
Agency or if CND or FNSRO determines investigations by OI are
appropriate.
(Sec. 11, Pub. L. 95-166, 91 Stat. 1337 (42 U.S.C. 1772, 1753, 1766); 44
U.S.C. 3506; sec. 812, Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C.
1759a))
[32 FR 12587, Aug. 31, 1967, as amended by Amdt. 13, 39 FR 28417, Aug.
7, 1974; Amdt. 14, 41 FR 31175, July 27, 1976; 47 FR 745, Jan. 7, 1982;
Amdt. 25, 47 FR 18564, Apr. 30, 1982; Amdt. 30, 49 FR 18987, May 4,
1984; 56 FR 32949, July 17, 1991; 57 FR 38586, Aug. 26, 1992]
Sec. 215.12 Claims against schools or child-care institutions.
(a) State agencies, or FNSROs where applicable, shall disallow any
portion of a claim and recover any payment made to a School Food
Authority or child-care institution that was not properly payable under
this part. State agencies will use their own procedures to disallow
claims and recover overpayments already made.
(b) [Reserved]
(c) The State Agency may refer any matter in connection with this
section to FNSRO and CND for determination of the action to be taken.
(d) Each State agency shall maintain all records pertaining to
action taken under this section. Such records shall be retained for a
period of three years after the date of the submission of the final
Financial Status Report, except that, if audit findings have not been
resolved, the records shall be retained beyond the three-year period as
long as required for the resolution of the issues raised by the audit.
(e) If CND does not concur with the State Agency action in paying a
claim or a reclaim, or in failing to collect an overpayment FNSRO shall
assert a claim against the State Agency for the amount of such claim,
reclaim or overpayment. In all such cases, the State Agency shall have
full opportunity to submit to CND evidence or information concerning the
action taken. If in the determination of CND, the State Agency's action
was unwarranted, the State Agency shall promptly pay to FNS the amount
of the claim, reclaim, or overpayment.
(f) The amounts recovered by the State Agency from schools and
child-care institutions may be utilized, first, to make reimbursement
payments for milk served during the fiscal year for which the funds were
initially available, and second, to repay any State funds expended in
the reimbursement of claims under the program and not otherwise repaid.
Any amounts recovered which are not so utilized shall be returned to FNS
in accordance with the requirements of Sec. 215.5(c).
(g) With respect to schools or child-care institutions in which
FNSRO administers the Program, when FNSRO disallows a claim or a portion
of a claim, or makes a demand for refund of an alleged overpayment, it
shall notify the School Food Authority or child-care institutions of the
reasons for such disallowance or demand and the School Food Authority or
child-care institutions shall have full opportunity to submit evidence
or to file reclaim
[[Page 84]]
for any amount disallowed or demanded in the same manner afforded in
this section to schools or child-care institutions administered by State
Agencies.
(h) The Secretary shall have the authority to determine the amount
of, to settle, and to adjust any claims arising under the Program, and
to compromise or deny such claim or any part thereof. The Secretary
shall also have the authority to waive such claims if the Secretary
determines that to do so would serve the purposes of the Program. This
provision shall not diminish the authority of the Attorney General of
the United States under section 516 of Title 28, U.S. Code, to conduct
litigation on behalf of the United States.
(47 FR 745, Jan. 7, 1982 (44 U.S.C. 3506; secs. 804, 816 and 817, Pub.
L. 97-35; 95 Stat. 521-535 (42 U.S.C. 1753, 1756, 1759, 1771 and 1785))
[32 FR 12587, Aug. 31, 1967, as amended by Amdt. 5, 37 FR 14686, July
22, 1972; Amdt. 13, 39 FR 28418, Aug. 7, 1974; Amdt. 14, 41 FR 31175,
July 27, 1976; 47 FR 745, Jan. 7, 1982; Amdt. 24, 47 FR 14133, Apr. 2,
1982]
Sec. 215.13 Management evaluations and audits.
(a) State agencies and school food authorities shall comply with the
requirements of part 3015 of this title concerning the audit
requirements for recipients and subrecipients of the Department's
financial assistance.
(b) These requirements call for organization-wide financial and
compliance audits to ascertain whether financial operations are
conducted properly; financial statements are presented fairly;
recipients and subrecipients comply with the laws and regulations that
affect the expenditures of Federal funds; recipients and subrecipients
have established procedures to meet the objectives of federally assisted
programs; and recipients and subrecipients are providing accurate and
reliable information concerning grant funds. States and school food
authorities shall use their own procedures to arrange for and prescribe
the scope of independent audits, provided that such audits comply with
the requirements set forth in part 3015 of this title.
(c) Each State agency shall provide FNS with full opportunity to
conduct management evaluations (including visits to schools and child-
care institutions) of any operations of the State agency under the
Program and shall provide OA with full opportunity to conduct audits
(including visits to schools and child-care institutions) of all
operations of the State agency under the Program. Each State agency
shall make available its records, including records of the receipt and
expenditure of funds under the Program, upon a reasonable request by FNS
or OA. OA shall also have the right to make audits of the records and
operations of any school or child-care institution.
(d) In conducting management evaluations, reviews or audits for any
fiscal year, the State agency, FNS, or OIG may disregard any overpayment
if the total overpayment does not exceed $600 or, in the case of State
agency claims in State administered Programs, it does not exceed the
amount established under State law, regulations or procedure as a
minimum amount for which claim will be made for State losses but not to
exceed $600. However, no overpayment is to be disregarded where there is
substantial evidence of violations of criminal law or civil fraud
statutes.
(Secs. 805 and 819, Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C. 1773);
sec. 812, Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C. 1759a))
[Amdt. 14, 41 FR 31175, July 27, 1976, as amended at 43 FR 58925, Dec.
22, 1978; Amdt. 23, 47 FR 14135, Apr. 2, 1982; Amdt. 25, 47 FR 18564,
Apr. 30, 1982; Amdt. 36, 54 FR 2990, Jan. 23, 1989; 57 FR 38586, Aug.
26, 1992; 59 FR 1894, Jan. 13, 1994; 64 FR 50742, Sept. 20, 1999]
Sec. 215.13a Determining eligibility for free milk in child-care institutions.
(a) General. Child care institutions which operate pricing programs
may elect to make free milk available, as set forth in Sec. 215.7(d)(2),
to children who meet the approved eligibility criteria. Such child care
institutions shall determine the children who are eligible for free milk
and assure that there is no physical segregation of, or other
discrimination against, or overt identification of, children unable to
pay the full price for milk.
(b) Action by State agencies and FNSROs. Each State agency, or FNSRO
where applicable, upon application for
[[Page 85]]
the program by a child care institution operating a pricing program, and
annually thereafter, shall require the institution to state whether or
not it wishes to serve free milk to eligible children at times that milk
is provided under the Program. It shall annually require each child care
institution electing to provide free milk to submit a free milk policy
statement and shall provide such institutions with a prototype free milk
policy statement and a copy of the State's family-size income standards
for determining eligibility for free meals and milk under the National
School Lunch and School Breakfast Programs to assist the institutions in
meeting its responsibilities.
(c) Action by institutions. Each child care institution which
operates a pricing program shall inform the State agency, or FNSRO where
applicable, at the time it applies for Program participation and at
least annually thereafter, whether or not it wishes to provide free
milk. Institutions electing to provide free milk shall annually submit a
written free milk policy statement for determining free milk eligibility
of children under their jurisdiction, which shall contain the items
specified in paragraph (d) of this section. Such institutions shall not
be approved for Program participation of their agreements renewed unless
the free milk policy has been reviewed and approved. Pending approval or
a revision of a policy statement, the existing policy shall remain in
effect.
(d) Policy statement. A free milk policy statement as required in
paragraph (c) of this section shall contain the following:
(1) The specific criteria to be used in determining eligibility for
free milk. These criteria shall give consideration to economic need as
reflected by family size and income. The criteria used by the child-care
institution may not result in the eligibility of children from families
whose incomes exceed the State's family-size income standards for
determining eligibility for free meals under the National School Lunch
and School Breakfast Programs.
(2) The method by which the child-care institution will collect
information from families in order to determine a child's eligibility
for free milk.
(3) The method by which the child-care institution will collect milk
payments so as to prevent the overt identification of children receiving
free milk.
(4) A hearing procedure substantially like that outlined in part 245
of this chapter.
(5) An assurance that there will be no discrimination against free
milk recipients and no discrimination against any child on the basis of
race, color, or national origin.
(e) Public announcement of eligibility criteria. Each child care
institution which elects to make free milk available under the Program
shall annually make a public announcement of the availability of free
milk to children who meet the approved eligibility criteria to the
information media serving the area from which its attendance is drawn.
The public announcement must also state that milk is available to all
children in attendance without regard to race, color, or national
origin.
(Sec. 11, Pub. L. 95-166, 91 Stat. 1337 (42 U.S.C. 1772, 1753, 1766);
sec. 5, Pub. L. 95-627, 92 Stat. 3619 (42 U.S.C. 1772))
[Amdt. 14, 41 FR 31176, July 27, 1976, as amended by Amdt. 16, 43 FR
1060, Jan. 6, 1978; 44 FR 10700, Feb. 23, 1979; Amdt. 17, 44 FR 33047,
June 8, 1979]
Sec. 215.14 Nondiscrimination.
The Department's regulations on nondiscrimination in federally
assisted programs are set forth in part 15 of this title. The
Department's agreements with State agencies, the State agencies'
agreements with School Food Authorities and child-care institutions and
the FNSRO agreements with School Food Authorities administering
nonprofit private schools and with child-care institutions shall contain
the assurances required by such regulations. When different types of
milk are served to children, (a) a uniform price for each type of milk
served shall be charged to all non-needy children in the school or
child-care institution who purchase milk, and (b) needy children shall
be given the opportunity to select any type of milk offered.
(44 U.S.C. 3506)
[Amdt. 13, 39 FR 28418, Aug. 7, 1974, as amended at 47 FR 745, Jan. 7,
1982]
[[Page 86]]
Sec. 215.14a Procurement standards.
(a) Requirements. State agencies and School Food Authorities shall
comply with the requirements of the Office of Management and Budget
(OMB) Circular A-102 and the Department's Uniform Federal Assistance
Regulations, 7 CFR part 3015, subpart S (46 FR 55658) concerning the
procurement of supplies, food, equipment and other services with Program
funds. These requirements are adopted by FNS to ensure that such
materials and services are obtained for the Program efficiently and
economically and in compliance with applicable laws and executive
orders.
(b) Contractual responsibilities. The standards contained in OMB
Circular A-102 and 7 CFR part 3015, do not relieve the State agency or
School Food Authority of any contractual responsibilities under its
contract. The State agency or School Food Authority is the responsible
authority, without recourse to FNS, regarding the settlement and
satisfaction of all contractual and administrative issues arising out of
procurements entered into in connection with the Program. This includes
but is not limited to: Source evaluation, protests, disputes, claims, or
other matters of a contractual nature. Matters concerning violation of
law are to be referred to the local, State or Federal authority that has
proper jurisdiction.
(c) Procurement procedure. The State agency or School Food Authority
may use their own procurement procedures which reflect applicable State
and local laws and regulations, provided that procurements made with
Program funds adhere to the standards set forth in OMB Circular A-102
and 7 CFR part 3015.
(Pub. L. 79-396, 60 Stat. 231 (42 U.S.C. 1751); Pub. L. 89-642, 80 Stat.
885-890 (42 U.S.C. 1773); Pub. L. 91-248, 84 Stat. 207 (42 U.S.C. 1759))
[Amdt. 27, 48 FR 19355, Apr. 29, 1983]
Sec. 215.15 Suspension, termination and grant closeout procedures.
Whenever it is determined that a State agency has materially failed
to comply with the provisions of this part, or with FNS guidelines and
instructions, FNS may suspend or terminate the Program in whole, or in
part, or take any other action as may be available and appropriate. A
State agency may also terminate the Program by mutual agreement with
FNS. FNS and the State agency shall comply with the provisions of the
Department's Uniform Federal Assistance Regulations, 7 CFR part 3015,
subpart N concerning grant suspension, termination and closeout
procedures. Furthermore, the State agency, or FNSRO where applicable,
shall apply these provisions to suspension or termination of the Program
in School Food Authorities.
[Amdt. 30, 49 FR 18987, May 4, 1984]
Sec. 215.16 Program information.
School Food Authorities and child-care institutions desiring
information concerning the Program should write to their State
educational agency, or the appropriate Food and Nutrition Service
Regional Office of FNS as indicated below:
(a) In the States of Connecticut, Maine, Massachusetts, New
Hampshire, New York, Rhode Island, and Vermont: Northeast Regional
Office, FNS, U.S. Department of Agriculture, 10 Causeway Street, Room
501, Boston, Massachusetts 02222-1065.
(b) In the States of Delaware, District of Columbia, Maryland, New
Jersey, Pennsylvania, Puerto Rico, Virginia, Virgin Islands, and West
Virginia: Mid-Atlantic Regional Office, FNS, U.S. Department of
Agriculture, Mercer Corporate Park, Corporate Boulevard, CN02150,
Trenton, New Jersey 08650.
(c) In the States of Alabama, Florida, Georgia, Kentucky,
Mississippi, North Carolina, South Carolina, and Tennessee: Southeast
Regional Office, FNS, U.S. Department of Agriculture, 1100 Spring
Street, NW., Atlanta, Georgia 30367.
(d) In the States of Illinois, Indiana, Michigan, Minnesota, Ohio,
and Wisconsin: Midwest Regional Office, FNS Department of Agriculture,
50 E. Washington Street, Chicago, Illinois 60602.
(e) In the States of Arkansas, Louisiana, New Mexico, Oklahoma,
Texas: Southwest Regional Office, Food and
[[Page 87]]
Nutrition Service, U.S. Department of Agriculture, 1100 Commerce Street,
Room 5-C-30, Dallas, Texas 75242.
(f) In the States of Alaska, American Samoa, Arizona, California,
Guam, Hawaii, Idaho, Nevada, Oregon, Trust Territory of the Pacific
Islands, The Commonwealth of the Northern Mariana Islands and
Washington: Western Regional Office, Food and Nutrition Service, U.S.
Department of Agriculture, 550 Kearny Street, Room 400, San Francisco,
California 94108.
(g) In the States of Colorado, Iowa, Kansas, Missouri, Montana,
Nebraska, North Dakota, South Dakota, Utah, and Wyoming: Mountain Plains
Regional Office, FNS, U.S. Department of Agriculture, 1244 Speer
Boulevard, Suite 903, Denver, Colorado 80204.
(Sec. 11, Pub. L. 95-166, 91 Stat. 1337 (42 U.S.C. 1772, 1753, 1766);
sec. 10(a), Pub. L. 95-627, 92 Stat. 3623 (42 U.S.C. 1760); sec.
10(d)(3), Pub. L. 95-627, 92 Stat. 3624 (42 U.S.C. 1757); sec. 14, Pub.
L. 95-627, 92 Stat. 3625-3626); secs. 804, 816, 817 and 819, Pub. L. 97-
35, 95 Stat. 521-535 (42 U.S.C. 1753, 1756, 1759, 1771, 1773 and 1785)
[Amdt. 14, 41 FR 31178, July 27, 1976, as amended by Amdt. 18, 44 FR
37898, June 29, 1979; Amdt. 27, 48 FR 195, Jan. 4, 1983; Amdt. 36, 54 FR
2990, Jan. 23, 1989]
Sec. 215.17 Information collection/recordkeeping--OMB assigned control numbers.
------------------------------------------------------------------------
Current OMB
7 CFR section where requirements are described control
number
------------------------------------------------------------------------
215.3(d)................................................... 0584-0327
215.5(a)................................................... 0584-0005
0584-0002
215.5(c)................................................... 0584-0341
215.7 (a), (c)............................................. 0584-0005
215.7 (b)(2)............................................... 0584-0026
215.7(d)................................................... 0584-0329
0584-0005
215.10 (a), (b), (d)....................................... 0584-0005
0584-0284
215.11 (b), (c)(1), (e).................................... 0584-0005
215.11(c)(2)............................................... 0584-0002
0584-0341
215.12 (a), (d), (e), (g).................................. 0584-0005
215.13(a).................................................. 0584-0005
215.13a(a)-(e)............................................. 0584-0026
215.14..................................................... 0584-0005
215.14a(a)-(c)............................................. 0584-0005
215.15..................................................... 0584-0005
------------------------------------------------------------------------
[50 FR 53258, Dec. 31, 1985]
PART 220--SCHOOL BREAKFAST PROGRAM--Table of Contents
Sec.
220.1 General purpose and scope.
220.2 Definitions.
220.3 Administration.
220.4 Payment of funds to States and FNSROs.
220.5 Method of payment to States.
220.6 Use of funds.
220.7 Requirements for participation.
220.8 Nutrition standards for breakfast and menu planning alternatives.
220.8a Breakfast components and quantities for the meal pattern.
220.9 Reimbursement payments.
220.10 Effective date for reimbursement.
220.11 Reimbursement procedures.
220.12 Competitive food services.
220.13 Special responsibilities of State agencies.
220.14 Claims against school food authorities.
220.15 Management evaluations and audits.
220.16 Procurement standards.
220.17 Prohibitions.
220.18 Suspension, termination and grant closeout procedures.
220.19 Free and reduced price breakfasts.
220.20 Program information.
220.21 Information collection/recordkeeping--OMB assigned control
numbers.
Appendix A to Part 220--Alternate Foods for Meals
Appendix B to Part 220--Categories of Foods of Minimal Nutritional Value
Appendix C to Part 220--Child Nutrition (CN) Labeling Program
Authority: 42 U.S.C. 1773, 1779, unless otherwise noted.
Sec. 220.1 General purpose and scope.
This part announces the policies and prescribes the regulations
necessary to carry out the provisions of section 4 of the Child
Nutrition Act of 1966, as amended, which authorizes payments to the
States to assist them to initiate, maintain, or expand nonprofit
breakfast programs in schools.
[Amdt. 25, 41 FR 34758, Aug. 17, 1976]
Sec. 220.2 Definitions.
For the purpose of this part the term:
(a) Act means the Child Nutrition Act of 1966, as amended.
(b) Breakfast means a meal which meets the nutritional requirements
set out in Sec. 220.8 or Sec. 220.8a, whichever is applicable, and which
is served to a child in the morning hours. The meal shall
[[Page 88]]
be served at or close to the beginning of the child's day at school.
(c) Child means: (1) A student of high school grade or under as
determined by the State educational agency, who is enrolled in an
educational unit of high school grade or under as described in
paragraphs (1) and (2) of the definition of ``School'', including
students who are mentally or physically disabled as defined by the State
and who are participating in a school program established for the
mentally or physically disabled; or (2) a person under 21 chronological
years of age who is enrolled in an institution or center as described in
paragraphs (3) and (4) of the definition of ``School''.
(c-1) Competitive foods means any foods sold in competition with the
School Breakfast Program to children in food service areas during the
breakfast period.
(d) CND means the Child Nutrition Division of the Food and Nutrition
Service of the Department.
(e) Department means the U.S. Department of Agriculture.
(f) Distributing agency means a State, Federal, or private agency
which enters into an agreement with the Department for the distribution
of commodities pursuant to part 250 of this chapter.
(g) Fiscal year means the period of 15 calendar months beginning
July 1, 1976, and ending September 30, 1977; and the period of 12
calendar months beginning October 1, 1977, and each October 1 of any
calendar year thereafter and ending September 30 of the following
calendar year.
(h) FNS means the Food and Nutrition Service of the Department.
(i) FNSRO means the appropriate Food and Nutrition Service Regional
Office of the Food and Nutrition Service of the Department.
(i-1) Foods of minimal nutritional value means: (1) In the case of
artificially sweetened foods, a food which provides less than five
percent of the Reference Daily Intake (RDI) for each of eight specified
nutrients per serving; (2) in the case of all other foods, a food that
provides less than five percent of the RDI for each of eight specified
nutrients per 100 calories and less than five percent of the RDI for
each of eight specified nutrients per serving. The eight nutrients to be
assessed for this purpose are: Protein, vitamin A, vitamin C, niacin,
riboflavin, thiamin, calcium and iron. Categories of foods of minimal
nutritional value are listed in appendix B of this part.
(j) Free breakfast means a breakfast for which neither the child nor
any member of his family pays or is required to work in the school or in
the school's food service.
(k) Infant cereal means any iron fortified dry cereal especially
formulated and generally recognized as cereal for infants that is
routinely mixed with breast milk or iron-fortified infant formula prior
to consumption.
(l) Infant formula means any iron-fortified infant formula intended
for dietary use solely as a food for normal healthy infants excluding
those formulas specifically formulated for infants with inborn errors of
metabolism or digestive or absorptive problems. Infant formula, as
served, must be in liquid state at recommended dilution.
(m) Menu item means, under Nutrient Standard Menu Planning or
Assisted Nutrient Standard Menu Planning, any single food or combination
of foods. All menu items or foods offered as part of the reimbursable
meal may be considered as contributing towards meeting the nutrition
standards provided in Sec. 220.8, except for those foods that are
considered as foods of minimal nutritional value as provided for in
Sec. 220.2(i-1) which are not offered as part of a menu item in a
reimbursable meal. For the purposes of a reimbursable breakfast, a
minimum of three menu items must be offered, one of which shall be fluid
milk served as a beverage or on cereal or both; under offer versus
serve, a student may decline only one menu item.
(n) Milk means pasteurized fluid types of unflavored or flavored
whole milk, lowfat milk, skim milk, or cultured buttermilk which meet
State and local standards for such milk except that, in the meal pattern
for infants (0 to 1 year of age), milk means breast milk or iron-
fortified infant formula. In Alaska, Hawaii, American Samoa, Guam,
Puerto Rico, the Trust Territory of the Pacific Islands, and the Virgin
Islands, if a sufficient supply of
[[Page 89]]
such types of fluid milk cannot be obtained, ``milk'' shall include
reconstituted or recombined milk. All milk should contain vitamins A and
D at levels specified by the Food and Drug Administration and consistent
with State and local standards for such milk.
(o) National School Lunch Program means the Program authorized by
the National School Lunch Act.
(o-1) Net cash resources means all monies as determined in
accordance with the State agency's established accounting system, that
are available to or have accrued to a School Food Authority's nonprofit
school food service at any given time, less cash payable. Such monies
may include but are not limited to, cash on hand, cash receivable,
earnings or investments, cash on deposit and the value of stocks, bonds
or other negotiable securities.
(o-2) Nonprofit school food service means all food service
operations conducted by the School Food Authority principally for the
benefit of school children, all of the revenue from which is used solely
for the operation or improvement of such food service.
(p) Nonprofit when applied to schools or institutions eligible for
the Program means exempt from income tax under section 501(c)(3) of the
Internal Revenue Code of 1954, as amended; or in the Commonwealth of
Puerto Rico, certified by the Governor.
(p-1) Nutrient Standard Menu Planning/Assisted Nutrient Standard
Menu Planning mean ways to develop menus based on the analysis of
nutrients in the menu items and foods offered over a school week to
determine if specific levels for a set of key nutrients and calories
were met. Such analysis is based on averages weighted in accordance with
the criteria in Sec. 220.8(e)(5). Such analysis is normally done by a
school or a school food authority. However, for the purposes of Assisted
Nutrient Standard Menu Planning, menu planning and analysis are
completed by other entities and shall incorporate the production
quantities needed to accommodate the specific service requirements of a
particular school or school food authority.
(q) OA means the Office of Audit of the Department.
(q-1) OI means the Office of Investigation of the Department.
(q-2) OIG means the Office of the Inspector General of the
Department.
(r) Program means the School Breakfast Program.
(s) Reduced price breakfast means a breakfast which meets all of the
following criteria: (1) The price shall be less than the full price of
the breakfast, (2) the price shall be 30 cents or lower, and (3) neither
the child nor any member of his family shall be required to supply an
equivalent value in work for the school or the school's food service.
(t) Reimbursement means financial assistance paid or payable to
participating schools for breakfasts meeting the requirements of
Sec. 220.8 or Sec. 220.8, whichever is applicable, served to eligible
children at rates assigned by the State agency, or FNSRO where
applicable. The term ``reimbursement'' also includes financial
assistance made available through advances to School Food Authorities.
(t-1) Revenue when applied to nonprofit school food service means
all monies received by or accruing to the nonprofit school food service
in accordance with the State agency's established accounting system
including, but not limited to, children's payments, earnings on
investments, other local revenues, State revenues, and Federal cash
reimbursements.
(u) School means: (1) An educational unit of high school grade or
under, recognized as part of the educational system in the State and
operating under public or nonprofit private ownership in a single
building or complex of buildings; (2) any public or nonprofit private
classes of preprimary grade when they are conducted in the
aforementioned schools; or (3) any public or nonprofit private
residential child care institution, or distinct part of such
institution, which operates principally for the care of children, and,
if private, is licensed to provide residential child care services under
the appropriate licensing code by the State or a subordinate level of
government, except for residential summer camps which participate in the
Summer Food Service Program for Children, Job Corps centers funded by
the Department of Labor,
[[Page 90]]
and private foster homes. The term ``residential child care
institutions'' includes, but is not limited to: Homes for the mentally,
emotionally or physically impaired, and unmarried mothers and their
infants; group homes; halfway houses; orphanages; temporary shelters for
abused children and for runaway children; long-term care facilities for
chronically ill children; and juvenile detention centers. A long-term
care facility is a hospital, skilled nursing facility, intermediate care
facility, or distinct part thereof, which is entended for the care of
children confined for 30 days or more.
(v) School Breakfast Program means the program authorized by section
4 of the Child Nutrition Act of 1966.
(v-1) School in severe need means a school determined to be eligible
for rates of reimbursement in excess of the prescribed National Average
Payment Factors, based upon the criteria set forth in Sec. 220.9(e).
(w) School Food Authority means the governing body which is
responsible for the administration of one or more schools and which has
legal authority to operate a breakfast program therein.
(w-1) School week means the period of time used to determine
compliance with the nutrition standards and the appropriate calorie and
nutrient levels in Sec. 220.8. Further, if applicable, school week is
the basis for conducting Nutrient Standard Menu Planning or Assisted
Nutrient Standard Menu Planning for breakfasts as provided in
Sec. 220.8(e) and Sec. 220.8(f). The period shall be a normal school
week of five consecutive days; however, to accommodate shortened weeks
resulting from holidays and other scheduling needs, the period shall be
a minimum of three consecutive days and a maximum of seven consecutive
days. Weeks in which school breakfasts are offered less than three times
shall be combined with either the previous or the coming week.
(x) Secretary means the Secretary of Agriculture.
(x-1) 7 CFR part 3015 means the Uniform Federal Assistance
Regulations published by the Department to implement OMB Circulars A-21,
A-87, A-102, A-110, and A-122; and Executive Order 12372. (For
availability of OMB Circulars referenced in this definition, see 5 CFR
1310.3.)
(x-2) 7 CFR part 3017 means the Department's regulation to implement
Executive Order 12549, covering governmentwide rules on suspension and
debarment as well as The Drug Free Workplace Act of 1988.
(x-3) 7 CFR part 3018 means the Department's Common Rule regarding
Governmentwide New Restrictions on Lobbying. Part 3018 implements the
requirements established by section 319 of the 1990 Appropriations Act
for the Department of Interior and Related Agencies (Pub. L. 101-121).
(x-4) 7 CFR part 3052 means the Department's regulations
implementing A-133, ``Audits of State, Local Governments, and Non-Profit
Organizations.'' (For availability of OMB Circulars referenced in this
definition, see 5 CFR 1310.3.)
(y) State means any of the 50 States, District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, and, as
applicable, American Samoa and the Commonwealth of the Northern
Marianas.
(z) State agency means: (1) The State educational agency or (2) such
other agency of the State as has been designated by the Governor or
other appropriate executive or legislative authority of the State and
approved by the Department to administer the Program in schools as
defined in Sec. 220.2(u)(3) of this part.
(aa) State educational agency means, as the State legislature may
determine: (1) The chief State school officer (such as the State
Superintendent of Public Instruction, Commissioner of Education, or
similar officer), or (2) a board of education controlling the State
department of education.
(bb) Yogurt means commercially prepared coagulated milk products
obtained by the fermentation of specific bacteria, that meet milk fat or
milk solid requirements and to which flavoring foods or ingredients may
be added. These products are covered by the Food and Drug
Administration's Definition and Standard of Identity for
[[Page 91]]
yogurt, lowfat yogurt, and nonfat yogurt, 21 CFR 131.200, 21 CFR
131.203, and 21 CFR 131.206, respectively.
(Sec. 6, Pub. L. 95-627, 92 Stat. 3620 (42 U.S.C. 1760); sec. 205, Pub.
L. 96-499, The Omnibus Reconciliation Act of 1980, 94 Stat. 2599; secs.
801, 803, 812; Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C. 1753, 1759(a),
1773, 1758; secs. 807 and 808, Pub. L. 97-35, 95 Stat. 521-535, 42
U.S.C. 1772, 1784, 1760; sec. 819, Pub. L. 97-35; 95 Stat. 533 (42
U.S.C. 1759a, 1773 and 1757))
[Amdt. 25, 41 FR 34758, Aug. 17, 1976]
Editorial Note: For Federal Register citations affecting Sec. 220.2,
see the List of CFR Sections Affected in the Finding Aids section of
this volume.
Sec. 220.3 Administration.
(a) Within the Department, FNS shall act on behalf of the Department
in the administration of the Program covered by this part. Within FNS,
CND shall be responsible for administration of the Program.
(b) Within the States, responsibility for the administration of the
Program in schools as defined in Sec. 220.2(u)(1), (u)(2) and (u)(4)
shall be in the State educational agency, except that FNSRO shall
administer the Program with respect to nonprofit private schools as
defined in Sec. 220.2(u)(1) of any State wherein the State educational
agency is not permitted by law to disburse Federal funds paid to it
under the Program; Provided, however, That FNSRO shall also administer
the Program in all other nonprofit private schools which have been under
continuous FNS administration since October 1, 1980, unless the
administration of such private schools is assumed by a State agency.
(c) Within the States, responsibility for the administration of the
Program in schools as defined in Sec. 220.2(u)(3) shall be in the State
educational agency, or if the State educational agency cannot administer
the Program in such schools, such other agency of the State as has been
designated by the Governor or other appropriate executive or legislative
authority of the State and approved by the Department to administer the
Program in such schools: Provided, however, That FNSRO shall administer
the Program in such schools if the State agency is not permitted by law
to disburse Federal funds paid to it under the Program to such schools;
and Provided, further, That FNSRO shall also administer the Program in
all other such schools which have been under continuous FNS
administration since October 1, 1980, unless the administration of such
schools is assumed by a State agency.
(d) References in this part to ``FNSRO where applicable'' are to
FNSRO as the agency administering the Program.
(e) Each State agency desiring to take part in any of the programs
shall enter into a written agreement with the Department for the
administration of the Program in the State in accordance with the
provisions of this part. Such agreement shall cover the operation of the
Program during the period specified therein and may be extended at the
option of the Department.
(Sec. 804, 816 and 817, Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C. 1753,
1756, 1759, 1771 and 1785); 44 U.S.C. 3506)
[Amdt. 25, 41 FR 34759, Aug. 17, 1976, as amended at 47 FR 745, Jan. 7,
1982; Amdt. 42, 47 FR 14133, Apr. 2, 1982; Amdt. 56, 54 FR 2990, Jan.
23, 1989]
Sec. 220.4 Payment of funds to States and FNSROs.
(a) To the extent funds are available, the Secretary shall make
breakfast assistance payments to each State agency for breakfasts served
to children under the Program. Subject to Sec. 220.13(b)(2), the total
of these payments for each State for any fiscal year shall be limited to
the total amount of reimbursement payable to eligible schools within the
State under this part for the fiscal year.
(b) The Secretary shall prescribe by July 1 of each fiscal year
annual adjustments to the nearest one-fourth cent in the national
average per breakfast factors for all breakfasts and for free and
reduced price breakfasts, that shall reflect changes in the cost of
operating a breakfast program.
(c) In addition to the funds made available under paragraph (a) of
this section, funds shall be made available to the State agencies, and
FNSROs where applicable, in such amounts as are needed to finance
reimbursement
[[Page 92]]
rates assigned in accordance with the provisions of Sec. 220.9(c).
(Secs. 801, 803, 812; Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C. 1753,
1759(a), 1773, 1758); Pub. L. 97-370, 96 Stat. 1806)
[38 FR 35554, Dec. 28, 1973, as amended at 40 FR 30923, July 24, 1975;
46 FR 51367, Oct. 20, 1981; 48 FR 20896, May 10, 1983; Amdt. 49, 49 FR
18987, May 4, 1984]
Sec. 220.5 Method of payment to States.
Funds to be paid to any State for the School Breakfast Program shall
be made available by means of Letters of Credit issued by FNS in favor
of the State agency. The State agency shall:
(a) Obtain funds needed for reimbursement to School Food Authorities
through presentation by designated State officials of a payment Voucher
on Letter of Credit in accordance with procedures prescribed by FNS and
approved by the U.S. Treasury Department; (b) submit requests for funds
only at such times and in such amounts, as will permit prompt payment of
claims or authorized advances; and (c) use the funds received from such
requests without delay for the purpose for which drawn.
[Amdt. 25, 41 FR 34759, Aug. 17, 1976]
Sec. 220.6 Use of funds.
(a) Federal funds made available under the School Breakfast Program
shall be used by State agencies, or FNSROs where applicable, to
reimburse or make advance payments to School Food Authorities in
connection with breakfasts served in accordance with the provisions of
this part. However, with the approval of FNS, any State agency, or FNSRO
where applicable, may reserve for use in carrying out special
developmental projects an amount up to 1 per centum of the funds earned
in any fiscal year under the School Breakfast Program. Advance payments
to School Food Authorities may be made at such times and in such amounts
as are necessary to meet current obligations.
(b) Whoever embezzles, willfully misapplies, steals, or obtains by
fraud any funds, assets, or property provided under this part, whether
received directly or indirectly from the Department, shall--
(1) If such funds, assets, or property are of a value of $100 or
more, be fined not more than $25,000 or imprisoned not more than 5 years
or both; or
(2) If such funds, assets, or property are of a value of less than
$100, be fined not more than $1,000 or imprisoned not more than one year
or both.
(c) Whoever receives, conceals, or retains to his use or gain funds,
assets, or property provided under this part, whether received directly
or indirectly from the Department, knowing such funds, assets, or
property have been embezzled, willfully misapplied, stolen, or obtained
by fraud, shall be subject to the same penalties provided in paragraph
(b) of this section.
(Sec. 10(a), Pub. L. 95-627, 92 Stat. 3623 (42 U.S.C. 1760); sec.
10(d)(3), Pub. L. 95-627, 92 Stat. 3624 (42 U.S.C. 1757); sec. 14, Pub.
L. 95-627, 92 Stat. 3625-3626)
[40 FR 30923, July 24, 1975, as amended by Amdt. 25, 41 FR 34759, Aug.
17, 1976; Amdt. 28, 44 FR 37899, June 29, 1979; 64 FR 50742, Sept. 20,
1999]
Sec. 220.7 Requirements for participation.
(a) The School Food Authority shall make written application to the
State agency, or FNSRO where applicable, for any school in which it
desires to operate the School Breakfast Program, if such school did not
participate in the Program in the prior fiscal year. The School Food
Authority shall also submit for approval, either with the application or
at the request of the State agency, or FNSRO where applicable, a free
and reduced price policy statement in accordance with part 245 of this
chapter. A School Food Authority which simultaneously makes application
for the National School Lunch Program and the School Breakfast Program
shall submit one free and reduced price policy statement which shall
provide that the terms, conditions, and eligibility criteria set forth
in such policy statement shall apply to the service of free and reduced
price lunches and to the service of free and reduced price breakfasts.
If, at the time application is made for the School Breakfast Program, a
School Food Authority has an approved free and reduced price policy
statement on file with the State agency, or FNSRO where applicable, for
the National
[[Page 93]]
School Lunch Program, it need only confirm in writing that such approved
policy statement will also apply to the operation of its School
Breakfast Program. Applications for the School Breakfast Program shall
not be approved in the absence of an approved free and reduced price
policy statement.
(a-1) A school which also either participates in the National School
Lunch Program or only receives donations of commodities for its
nonprofit lunch program under the provisions of part 250 of this chapter
(commodity only school) shall apply the same set of eligibility criteria
so that children who are eligible for free lunches shall also be
eligible for free breakfasts and children who are eligible for reduced
price lunches shall also be eligible for reduced price breakfasts.
(a-2) Schools shall, at least once during each school year, obtain a
food safety inspection conducted by a State or local governmental agency
responsible for food safety inspections. However, this requirement shall
not apply to a school if a food safety inspection of the school is
required by a State or local governmental agency responsible for food
safety inspections.
(b) Applications shall solicit information in sufficient detail to
enable the State agency to determine whether the School Food Authority
is eligible to participate in the Program and extent of the need for
Program payments.
(c) Within the funds available to them, State agencies, or FNSRO's
where applicable, shall approve for participation in the School
Breakfast Program any school making application and agreeing to carry
out the program in accordance with this part. State agencies, or FNSRO's
where applicable, have a positive obligation, however, to extend the
benefits of the School Breakfast Program to children attending schools
in areas where poor economic conditions exist.
(d) Any School Food Authority may employ a food service management
company (or other nonprofit agency or nonprofit organization) in the
conduct of its feeding operation in one or more of its schools. A School
Food Authority that employs a food service management company shall
remain responsible for seeing that the feeding operation is in
conformance with its agreement with the State Agency or the FNS Regional
Office. The contract between the School Food Authority and the food
service management company shall expressly provide that:
(1) The food service management company shall maintain such records
(supported by invoices, receipts, or other evidence) as the School Food
Authority will need to meet its responsibilities under this part, and
shall report thereon to the School Food Authority promptly at the end of
each month;
(2) Any federally donated commodities received by the School Food
Authority and made available to the food service management company
shall enure only to the benefit to the School Food Authority's nonprofit
school food service and be utilized therein; and
(3) The books and records of the food service management company
pertaining to the School Food Authority's feeding operation shall be
available for a period of 3 years from the date of the submission of the
final Financial Status Report, for inspection and audit by
representatives of the State agency, of the Department, and of the
General Accounting Office at any reasonable time and place, except that
if audit findings have not been resolved, the records shall be retained
beyond the three-year period as long as required for the resolution of
the issues raised by the audit.
(e) Each school food authority approved to participate in the
program shall enter into a written agreement with the State agency or
the Department through the FNSRO, as applicable, that may be amended as
necessary. Nothing in the preceding sentence shall be construed to limit
the ability of the State agency or the FNSRO to suspend or terminate the
agreement in accordance with Sec. 220.18. If a single State agency
administers any combination of the Child Nutrition Programs, that State
agency shall provide each SFA with a single agreement with respect to
the operation of those programs. Such agreements shall provide that the
School Food Authority shall, with respect to participating schools under
its jurisdiction:
[[Page 94]]
(1)(i) Maintain a nonprofit school food service; (ii) in accordance
with the financial management system established under Sec. 220.13(i) of
this part, use all revenues received by such food service only for the
operation or improvement of that food service Except that, facilities,
equipment, and personnel support with funds provided to a school food
authority under this part may be used to support a nonprofit nutrition
program for the elderly, including a program funded under the Older
Americans Act of 1965 (42 U.S.C. 3001 et seq.); (iii) revenues received
by the nonprofit school food service shall not be used to purchase land
or buildings or to contruct buildings; (iv) limit its net cash resources
to an amount that does not exceed three months average expenditure for
its nonprofit school food service or such other amount as may be
approved by the State agency; and (v) observe the limitations on any
competitive food service as set forth in Sec. 220.12 of this part;
(2) Serve breakfasts which meet the minimum requirements prescribed
in Sec. 220.8 or Sec. 220.8a, whichever is applicable, during a period
designated as the breakfast period by the school;
(3) Price the breakfast as a unit;
(4) Supply breakfast without cost or at reduced price to all
children who are determined by the School Food Authority to be unable to
pay the full price thereof in accordance with the free and reduced price
policy statements approved under part 245 of this chapter;
(5) Make no discrimination against any child because of his
inability to pay the full price of the breakfasts;
(6) Claim reimbursement at the assigned rates only for breakfasts
served in accordance with the agreement;
(7) Submit Claims for Reimbursement in accordance with Sec. 220.11
of this part and procedures established by the State agency, or FNSRO
where applicable;
(8) Maintain, in the storage, preparation and service of food,
proper sanitation and health standards in conformance with all
applicable State and local laws and regulations;
(9) Purchase, in as large quantities as may be efficiently utilized
in its nonprofit school food service, foods designated as plentiful by
the State Agency, or CFPDO, where applicable;
(10) Accept and use, in as large quantities as may be efficiently
utilized in its nonprofit school food service, such foods as may be
offered as a donation by the Department;
(11) Maintain necessary facilities for storing, preparing, and
serving food;
(12) Maintain a financial management system as prescribed by the
State agency, or FNSRO where applicable;
(13) Upon request, make all accounts and records pertaining to its
nonprofit school food service available to the State agency, to FNS and
to OA for audit or review at a reasonable time and place. Such records
shall be retained for a period of three years after the end of the
fiscal year to which they pertain, except that if audit findings have
not been resolved, the records shall be retained beyond the three-year
period as long as required for the resolution of the issues raised by
the audit;
(14) Retain the individual application for free and reduced price
breakfasts submitted by families for a period of three years after the
end of the fiscal year to which they pertain; and
(15) Comply with the requirements of the Department's regulations
respecting nondiscrimination (7 CFR part 15).
(f) Nothing contained in this part shall prevent the State Agency
from imposing additional requirements for participation in the program
which are not inconsistent with the provisions of this part.
(44 U.S.C. 3506; sec. 819, Pub. L. 97-35, 95 Stat. 533 (42 U.S.C. 1759a,
1773 and 1757); Pub. L. 79-396, 60 Stat. 231 (42 U.S.C. 1751); Pub. L.
89-647, 80 Stat. 885-890 (42 U.S.C. 1773); Pub. L. 91-248, 84 Stat. 207
(42 U.S.C. 1759))
[32 FR 34, Jan. 5, 1967]
Editorial Note: For Federal Register citations affecting
Sec. 220.7, see the List of CFR Sections Affected in the Finding Aids
section of this volume.
Sec. 220.8 Nutrition standards for breakfast and menu planning alternatives.
(a) Nutrition standards for breakfasts for children age 2 and over.
School food authorities shall ensure that participating schools provide
nutritious and well-balanced breakfasts. For children
[[Page 95]]
age 2 and over, breakfasts shall be offered based on the nutrition
standards provided in this section when averaged over a school week. For
the purposes of this section, the nutrition standards are:
(1) Provision of one-fourth of the Recommended Dietary Allowances
(RDA) of protein, calcium, iron, vitamin A and vitamin C to the
applicable age or grade groups in accordance with the appropriate levels
provided in paragraphs (b), (c), or (e)(1) of this section, whichever is
applicable;
(2) Provision of the breakfast energy allowances for children based
on the age or grade groups in accordance with the appropriate levels
provided in paragraphs (b), (c) or (e)(1) of this section, whichever is
applicable;
(3) The applicable recommendations of the 1990 Dietary Guidelines
for Americans which are:
(i) Eat a variety of foods;
(ii) Limit total fat to 30 percent of calories;
(iii) Limit saturated fat to less than 10 percent of calories;
(iv) Choose a diet low in cholesterol;
(v) Choose a diet with plenty of vegetables, fruits, and grain
products; and
(vi) Use salt and sodium in moderation.
(4) The following measures of compliance with the applicable
recommendations of the 1990 Dietary Guidelines for Americans:
(i) A limit on the percent of calories from total fat to 30 percent
based on the actual number of calories offered;
(ii) A limit on the percent of calories from saturated fat to less
than 10 percent based on the actual number of calories offered;
(iii) A reduction of the levels of sodium and cholesterol; and
(iv) An increase in the level of dietary fiber.
(5) School food authorities have three alternatives for menu
planning in order to meet the requirements of this paragraph and the
appropriate nutrient and calorie levels in paragraphs (b), (c) or (e)(1)
of this section, whichever is applicable: nutrient standard menu
planning as provided in paragraph (e) of this section, assisted nutrient
standard menu planning as provided for in paragraph (f) of this section,
or food-based menu planning as provided for in paragraph (g) of this
section. The actual minimum calorie and nutrient levels vary depending
upon the alternative followed due to the differences in age/grade
groupings of each alternative.
(6) Production and menu records shall include sufficient information
to evaluate the menu's contribution to the requirements on nutrition
standards in paragraph (a) of this section and the appropriate levels of
nutrient and calorie levels in paragraphs (b), (c) or (e)(1) of this
section, whichever is applicable. If applicable, schools or school food
authorities shall maintain nutritional analysis records to demonstrate
that breakfasts meet, when averaged over each school week, the nutrition
standards provided in paragraph (a) of this section and the nutrient and
calorie levels for children for each age or grade group in accordance
with paragraphs (b) or (e)(1) of this section.
(b) Nutrient levels/nutrient analysis. (1) For the purposes of
nutrient standard and assisted nutrient standard menu planning, as
provided for in paragraphs (e) and (f), respectively, of this section,
schools shall, at a minimum, provide the calorie and nutrient levels for
school breakfasts (offered over a school week) for required grade groups
specified in the following chart:
Minimum Requirements for Nutrient and Calorie Levels for School Breakfast
[School week averages]
----------------------------------------------------------------------------------------------------------------
Option for
Preschool Grades K-12 grades 7-12
----------------------------------------------------------------------------------------------------------------
Energy Allowances (calories).......................................... 388 554 618
Total Fat (as a Percentage of Actual Total Food Energy)............... (\1\) (\1\) (\1\)
Total Saturated Fat (as a Percentage of Actual Total Food Energy)..... (\2\) (\2\) (\2\)
Protein (g)........................................................... 5 10 12
Calcium (mg).......................................................... 200 257 300
Iron (mg)............................................................. 2.5 3.0 3.4
Vitamin A (RE)........................................................ 113 197 225
[[Page 96]]
Vitamin C (mg)........................................................ 11 13 14
----------------------------------------------------------------------------------------------------------------
\1\ Not to exceed 30 percent over a school week.
\2\ Less than 10 percent over a school week.
(2) At their option, schools may provide for calorie and nutrient
levels for school breakfasts (offered over a school week) for the age
groups specified in the following chart or may develop their own age
groups and their corresponding levels in accordance with paragraph
(e)(1) of this section.
Optional Minimum Nutrient Levels for School Breakfasts/Nutrient Analysis
[School week averages]
----------------------------------------------------------------------------------------------------------------
Ages 3-6 Ages 7-10 Ages 11-13 Ages 14 and
Nutrients and energy allowances years years years above
----------------------------------------------------------------------------------------------------------------
Energy Allowances/Calories.............................. 419 500 588 625
Total Fat (as a percent of actual total food energy).... (\1\) (\1\) (\1\) (\1\)
Saturated Fat (as a percent of actual total food energy) (\2\) (\2\) (\2\) (\2\)
RDA for Protein (g)..................................... 5.50 7.00 11.25 12.50
RDA for Calcium (mg).................................... 200 200 300 300
RDA for Iron (mg)....................................... 2.5 2.5 3.4 3.4
RDA for Vitamin A (RE).................................. 119 175 225 225
RDA for Vitamin C (mg).................................. 11.00 11.25 12.50 14.40
----------------------------------------------------------------------------------------------------------------
\1\ Not to exceed 30 percent over a school week.
\2\ Less than 10 percent over a school week.
(c) Nutrient levels/food-based menu planning. For the purposes of
the food-based menu planning alternative as provided for in paragraph
(g) of this section, the following chart provides the minimum levels, by
grade group, for calorie and nutrient levels for school breakfasts
offered over a school week:
Calorie and Nutrient Levels for School Breakfast
[School week averages]
----------------------------------------------------------------------------------------------------------------
Option for
Preschool Grades K-12 grades 7-12
----------------------------------------------------------------------------------------------------------------
Energy Allowances (Calories).......................................... 388 554 618
Total Fat (as a percentage of actual total food energy)............... \1\ \1\ \1\
Total Saturated Fat (as a percentage of actual total food energy)..... \2\ \2\ \2\
Protein (g)........................................................... 5 10 12
Calcium (mg).......................................................... 200 257 300
Iron (mg)............................................................. 2.5 3.0 3.4
Vitamin A (RE)........................................................ 113 197 225
Vitamin C (mg)........................................................ 11 13 14
----------------------------------------------------------------------------------------------------------------
\1\ Not to Exceed 30 Percent Over a School Week
\2\ Less Than 10 Percent Over a School Week
(d) Exceptions. Breakfasts claimed for reimbursement shall meet the
nutrition requirements for reimbursable meals specified in this section.
However, breakfasts served which accommodate the exceptions and
variations authorized under this paragraph are also reimbursable.
Exceptions and variations are restricted to the following:
(1) Medical or dietary needs. Schools shall make substitutions in
the foods or menu items offered in accordance with this section for
students who are considered to have a disability under 7 CFR part 15b
and whose disability restricts their diet. Schools may also make
substitutions for students who do
[[Page 97]]
not have a disability but who are unable to consume the regular
breakfast because of medical or other special dietary needs.
Substitutions shall be made on a case-by-case basis only when supported
by a statement of the need for substitutions that includes recommended
alternate foods, unless otherwise exempted by FNS. Such statement shall,
in the case of a disabled student, be signed by a physician or, in the
case of a student who is not disabled, by a recognized medical
authority.
(2) FNS encourages school food authorities to consider ethnic and
religious preferences when planning and preparing meals. For the
purposes of the food-based menu planning alternative, FNS may approve
variations in the food components of the breakfast on an experimental or
on a continuing basis in any school where there is evidence that such
variations are nutritionally sound and are necessary to meet ethnic,
religious, or economic needs.
(e) Nutrient Standard Menu Planning. (1) Adjusted nutrient levels.
(i) At a minimum, schools that choose the nutrient standard menu
planning alternative and that have children age 2 enrolled shall ensure
that the nutrition standards in paragraph (a) of this section and the
required preschool levels for nutrients and calories in paragraph (b)(1)
of this section are met except that, such schools have the option of
either using the nutrient and calorie levels for preschool children in
paragraph (b)(2) of this section, or developing separate nutrient levels
for this age group. The methodology for determining such levels will be
available in menu planning guidance material provided by FNS.
(ii) At a minimum, schools shall offer meals to children based on
the required grade groups in paragraph (b)(1) of this section. However,
schools may, at their option, offer meals to children using the age
groups and their corresponding nutrient and calorie levels in paragraph
(c)(2) of this section or, following guidance provided by FNS, develop
their own age or grade groups and their corresponding nutrient and
calorie levels. However, if only one age or grade is outside the
established levels, schools may use the levels for the majority of
children regardless of the option selected.
(2) Contents of reimbursable meal and offer versus serve. (i)
Minimum requirements. For the purposes of this menu planning
alternative, a reimbursable breakfast shall include a minimum of three
menu items as defined in Sec. 220.2. All menu items or foods offered as
part of the reimbursable meal may be considered as contributing towards
meeting the nutrition standards in paragraph (a) of this section and the
appropriate nutrient and calorie levels in paragraphs (b) or (e)(1) of
this section, whichever is applicable, except for those foods that are
considered foods of minimal nutritional value as provided for in
Sec. 220.2(i-1) which are not offered as part of a menu item in a
reimbursable meal. Such reimbursable breakfasts, as offered, shall meet
the established nutrition standards in paragraph (a) of this section and
the appropriate nutrient and calorie levels in paragraphs (b) or (e)(1)
of this section, whichever is applicable, when averaged over a school
week.
(ii) Offer versus serve. Each participating school shall offer its
students at least three menu items as required by paragraph (e)(2)(i) of
this section. Under offer versus serve, students must select at least
two menu items and may decline a maximum of one menu item offered. The
price of a reimbursable breakfast shall not be affected if a student
declines a menu item or requests smaller portions.
(3) Nutrient analysis under Nutrient Standard Menu Planning. School
food authorities choosing the nutrient analysis alternative shall
conduct nutrient analysis on all menu items or foods offered as part of
the reimbursable meal. However, those foods that are considered as foods
of minimal nutritional value as provided for in Sec. 220.2(i-1) which
are not offered as part of a menu item in a reimbursable meal shall not
be included. Such analysis shall be over the course of each school week.
(4) The National Nutrient Database and software specifications. (i)
Nutrient analysis shall be based on information provided in the National
Nutrient Database for Child Nutrition Programs. This database shall be
incorporated
[[Page 98]]
into software used to conduct nutrient analysis. Upon request, FNS will
provide information about the database to software companies that wish
to develop school food service software systems.
(ii) Any software used to conduct nutrient analysis shall be
evaluated beforehand by FNS or by an FNS designee and, as submitted, has
been determined to meet the minimum requirements established by FNS.
However, such review does not constitute endorsement by FNS or USDA.
Such software shall provide the capability to perform all functions
required after the basic data has been entered including calculation of
weighted averages and the optional combining of analysis of the
breakfast and lunch programs as provided in paragraph (e)(5) of this
section.
(5) Determination of weighted averages. (i) Menu items and foods
offered as part of a reimbursable meal shall be analyzed based on
portion sizes and projected serving amounts and shall be weighted based
on their proportionate contribution to the meals. Therefore, in
determining whether meals satisfy nutritional requirements, menu items
or foods more frequently offered will be weighted more heavily than menu
items or foods which are less frequently offered. Such weighting shall
be done in accordance with guidance issued by FNS as well as that
provided by the software used.
(ii) An analysis of all menu items and foods offered in the menu
over each school week shall be computed for calories and for each of the
following nutrients: protein; vitamin A; vitamin C; iron; calcium; total
fat; saturated fat; and sodium. The analysis shall also include the
dietary components of cholesterol and dietary fiber.
(iii) At its option, a school food authority may combine analysis of
the National School Lunch and School Breakfast Programs. Such analysis
shall be proportionate to the levels of participation in the two
programs in accordance with guidance issued by FNS.
(6) Comparing average nutrient levels. Once the appropriate
procedures of paragraph (e)(5) of this section have been completed, the
results shall be compared to the appropriate nutrient and calorie
levels, by age/grade group, in paragraphs (b)(1) or (b)(2) of this
section or the levels developed in accordance with paragraph (e)(1) of
this section, whichever is applicable to determine the school week's
average. In addition, comparisons shall be made to the nutrition
standards provided in paragraph (a) of this section in order to
determine the degree of conformity over the school week.
(7) Adjustments based on students' selections. The results obtained
under paragraphs (e)(5) and (e)(6) of this section shall be used to
adjust future menu cycles to accurately reflect production and the
frequency with which menu items and foods are offered. Menus may require
further analysis and comparison, depending on the results obtained in
paragraph (e)(6) of this section when production and selection patterns
of students change. The school food authority may need to consider
modifications to the menu items and foods offered based on student
selections as well as modifications to recipes and other specifications
to ensure that the nutrition standards provided in paragraph (a) of this
section and the appropriate calorie and nutrient levels in paragraphs
(b) or (e)(1) of this section, whichever is applicable, are met.
(8) Standardized recipes. Under Nutrient Standard Menu Planning,
standardized recipes shall be developed and followed. A standardized
recipe is one that was tested to provide an established yield and
quantity through the use of ingredients that remain constant in both
measurement and preparation methods. USDA/FNS standardized recipes are
included in the National Nutrient Database for the Child Nutrition
Programs. In addition, local standardized recipes used by school food
authorities shall be analyzed for their calories, nutrients and dietary
components, as provided for in paragraph (e)(5)(ii) of this section, and
added to the local databases by school food authorities in accordance
with guidance issued by FNS.
(9) Processed foods. Unless already included in the National
Nutrient Database, the calorie amounts, nutrients and dietary
components, as provided in
[[Page 99]]
paragraph (e)(5)(ii) of this section, of purchased processed foods and
menu items used by the school food authority shall be obtained by the
school food authority or State agency and incorporated into the database
at the local level in accordance with FNS guidance.
(10) Menu substitutions. If the need for serving a substitute
food(s) or menu item(s) occurs at least two weeks prior to serving the
planned menu, the revised menu shall be reanalyzed based on the changes.
If the need for serving a substitute food(s) or menu item(s) occurs two
weeks or less prior to serving the planned menu, no reanalysis is
required. However, to the extent possible, substitutions should be made
using similar foods.
(11) Compliance with the nutrition standards. If the analysis
conducted in accordance with paragraphs (e)(1) through (e)(10) of this
section shows that the menus offered are not meeting the nutrition
standards in paragraph (a) of this section and the appropriate levels of
nutrients and calories in paragraphs (b)(1) or (b)(2) of this section or
the levels developed in accordance with paragraph (e)(1), whichever is
applicable, actions, including technical assistance and training, shall
be taken by the State agency, school food authority, or school, as
appropriate, to ensure that the breakfasts offered to children comply
with the nutrition standards established by paragraph (a) of this
section and the appropriate levels of nutrients and calories in
paragraphs (b) or (e)(1) of this section, whichever is applicable.
(12) Other programs. Any school food authority that operates the
Summer Food Service Program under part 225 of this chapter and/or the
Child and Adult Care Food Program under part 226 of this chapter may, at
its option and with State agency approval, prepare meals provided for
those programs using the nutrient standard menu planning alternative,
except for children under two years of age. For school food authorities
providing meals for adults, FNS will provide guidance on the level of
nutrients and calories needed.
(f) Assisted Nutrient Standard Menu Planning. (1) School food
authorities without the capability to conduct Nutrient Standard Menu
Planning, as provided in paragraph (e) of this section may choose an
alternative which uses menu cycles developed by other sources. Such
sources may include but are not limited to the State agency, other
school food authorities, consultants, or food service management
companies. This alternative is Assisted Nutrient Standard Menu Planning.
(2) Assisted Nutrient Standard Menu Planning shall establish menu
cycles that have been developed in accordance with paragraphs (e)(1)
through (e)(10) of this section as well as local food preferences and
local food service operations. These menu cycles shall incorporate the
nutrition standards in paragraph (a) of this section and the appropriate
nutrient and calorie levels in paragraph (b) or (e)(1) of this section,
whichever is applicable. In addition to the menu cycle, recipes, food
product specifications and preparation techniques shall also be
developed and provided by the entity furnishing Assisted Nutrient
Standard Menu Planning to ensure that the menu items and foods offered
conform to the nutrient analysis determinations of the menu cycle.
(3) At the inception of any use of Assisted Nutrient Standard Menu
Planning, the State agency shall approve the initial menu cycle,
recipes, and other specifications to determine that all required
elements for correct nutrient analysis are incorporated. The State
agency shall also, upon request of the school food authority, provide
assistance with implementation of the chosen system.
(4) After initial service of the menu cycle under the Assisted
Nutrient Standard Menu Planning, the nutrient analysis shall be
reassessed and appropriate adjustments made in accordance with paragraph
(e)(7) of this section.
(5) Under Assisted Nutrient Standard Menu Planning, the school food
authority retains final responsibility for ensuring that all nutrition
standards established in paragraph (a) of this section and the
appropriate nutrient and calorie levels in paragraphs (b) or (e)(1) of
this section, whichever is applicable, are met.
(6) If the analysis conducted in accordance with paragraphs (e)(1)
through (e)(10) and paragraph (f)(4) of
[[Page 100]]
this section shows that the menus offered are not meeting the nutrition
standards in paragraph (a) of this section and the appropriate nutrient
and calorie levels in paragraph (b) of this section or the levels
developed in accordance with paragraph (e)(1) of this section, whichever
is applicable, actions, including technical assistance and training,
shall be taken by the State agency, school food authority, or school, as
appropriate, to ensure that the breakfasts offered to children comply
with the nutrition standards established by paragraph (a) of this
section and the appropriate nutrient and calorie levels in paragraphs
(b) or (e)(1) of this section, whichever is applicable.
(7) Any school food authority that operates the Summer Food Service
Program under part 225 of this chapter and/or the Child and Adult Care
Food Program under part 226 of this chapter may, at its option and with
State agency approval, prepare meals provided for those programs using
the assisted nutrient standard menu planning alternative, except for
children under two years of age. For school food authorities providing
meals for adults, FNS will provide guidance on the level of nutrients
and calories needed.
(g) Food-based menu planning. (1) Food components. Except as
otherwise provided in this paragraph and in any appendix to this part to
be eligible for Federal cash reimbursement, a breakfast planned using
the food-based menu planning alternative shall contain, at a minimum,
the following food components in the quantities specified in the table
in paragraph (g)(2) of this section:
(i) A serving of fluid milk served as a beverage or on cereal or
used in part for each purpose;
(ii) A serving of fruit or vegetable or both, or full-strength fruit
or vegetable juice; and
(iii) Two servings from one of the following components or one
serving from each:
(A) Grains/breads;
(B) Meat/Meat alternate.
(2) Minimum quantities. At a minimum, schools shall serve meals in
the quantities provided in the following chart:
----------------------------------------------------------------------------------------------------------------
Minimum quantities required for
-------------------------------------------------------------------------------
Meal component Option for grades
Ages 1-2 Preschool Grades K-12 7-12
----------------------------------------------------------------------------------------------------------------
Milk (Fluid) (As a beverage, on \1/2\ Cup......... \3/4\ Cup......... 8 Ounces.......... 8 Ounces
cereal or both).
Juice/Fruit/Vegetable: Fruit and/ \1/4\ Cup......... \1/2\ Cup......... \1/2\ Cup......... \1/2\ Cup
or vegetable; or full-strength
fruit juice or vegetable juice.
----------------------------------------------------------------------------------------------------------------
SELECT ONE SERVING FROM EACH OF THE FOLLOWING COMPONENTS OR TWO FROM ONE COMPONENT:
----------------------------------------------------------------------------------------------------------------
Grains/Breads-One of the
following or an equivalent
combination:
Whole-Grain or Enriched \1/2\ Slice....... \1/2\ Slice....... 1 Slice........... 1 Slice.
Bread.
Whole-Grain or Enriched \1/2\ Serving..... \1/2\ Serving..... 1 Serving......... 1 Serving.
Biscuit, Roll, Muffin, Etc.
Whole-Grain, Enriched or \1/4\ Cup or \1/3\ \1/3\ Cup or \1/2\ \3/4\ Cup or 1 \3/4\ Cup or 1
Fortified Cereal. Ounce. Ounce. Ounce. Ounce. Plus an
Additional
Serving of one of
the Grains/Breads
Above.
Meat or Meat Alternates:
Meat/poultry or fish........ \1/2\ Ounce....... \1/2\ Ounce....... 1 Ounce........... 1 Ounce.
Cheese...................... \1/2\ Ounce....... \1/2\ Ounce....... 1 Ounce........... 1 Ounce.
Egg (large)................. \1/2\............. \1/2\............. \1/2\............. \1/2\.
Peanut butter or other nut 1 Tablespoon...... 1 Tablespoon...... 2 Tablespoons..... 2 Tablespoons.
or seed butters.
Cooked dry beans and peas... 2 Tablespoons..... 2 Tablespoons..... 4 Tablespoons..... 4 Tablespoons
Nut and/or seeds (as listed \1/2\ Ounce....... \1/2\ Ounce....... 1 Ounce........... 1 Ounce.
in program guidance) \1\.
Yogurt, plain or flavored, 2 oz. or \1/4\ cup 2 oz. or \1/4\ cup 4 oz. or \1/2\ cup 4 oz. or \1/2\ cup
unsweetened or sweetened.
----------------------------------------------------------------------------------------------------------------
\1\ No more than 1 ounce of nuts and/or seeds may be served in any one meal.
[[Page 101]]
(3) Offer Versus Serve. Each school shall offer its students all
four required food items as set forth under paragraph (g)(1) of this
section. At the option of the school food authority, each school may
allow students to refuse one food item from any component that the
student does not intend to consume. The refused food item may be any of
the four items offered to the student. A student's decision to accept
all four food items or to decline one of the four food items shall not
affect the charge for breakfast.
(4) Outlying areas. Schools in American Samoa, Puerto Rico and the
Virgin Islands may serve a starchy vegetable such as yams, plantains, or
sweet potatoes to meet the grain/bread requirement. For the Commonwealth
of the Northern Mariana Islands, FNS has established a menu consistent
with the food-based menu alternative and with local food consumption
patterns and which, given available food supplies and food service
equipment and facilities, provides optimum nutrition consistent with
sound dietary habits for participating children. The State agency shall
attach to and make a part of the written agreement required under
Sec. 210.9 of this chapter the requirements of that menu option.
(h) Milk requirement for children ages 2-17. (1) A serving of milk
as a beverage or on cereal or used in part for each purpose shall be
offered for school breakfasts.
(2) If emergency conditions prevent a school normally having a
supply of milk from temporarily obtaining delivery thereof, the State
agency, or FNSRO where applicable, may approve reimbursement for
breakfast served without milk during the emergency period.
(3) If a school is unable to obtain a supply of any type of fluid
milk on a continuing basis, the State agency may approve the service of
breakfasts without milk if the school uses an equivalent amount of
canned or dry milk in the preparation of breakfasts. In Alaska, Hawaii,
American Samoa, Guam, Puerto Rico, the Commonwealth of the Northern
Mariana Islands, and the Virgin Islands, if a sufficient supply of fluid
milk cannot be obtained, ``milk'' shall include reconstituted or
recombined milk, or as otherwise provided under written exception by
FNS.
(i) Infant meal pattern. When infants from birth through 11 months
of age participate in the Program, an infant breakfast shall be offered.
Foods within the infant breakfast pattern shall be of texture and
consistency appropriate for the particular age group being served, and
shall be served to the infant during a span of time consistent with the
infant's eating habits. For infants 4 through 7 months of age, solid
foods are optional and should be introduced only when the infant is
developmentally ready. Whenever possible, the school should consult with
the infant's parent in making the decision to introduce solid foods.
Solid foods should be introduced one at a time on a gradual basis with
the intent of ensuring health and nutritional well-being. For infants 8
through 11 months of age, the total amount of food authorized in the
meal patterns set forth below must be provided in order to qualify for
reimbursement. Additional foods may be served to infants 4 months of age
and older with the intent of improving their overall nutrition. Breast
milk, provided by the infant's mother, may be served in place of infant
formula from birth through 11 months of age. Either breast milk or iron-
fortified infant formula shall be served for the entire first year. For
some breastfed infants who regularly consume less than the minimum
amount of breast milk per feeding, a serving of less than the minimum
amount of breast milk may be offered. In these situations, additional
breast milk must be offered if the infant is still hungry. The infant
breakfast pattern shall contain, at a minimum, each of the following
components in the amounts indicated for the appropriate age groups:
(1) Birth through 3 months. 4 to 6 fluid ounces of breast milk or
iron-fortified infant formula.
(2) 4 through 7 months. 4 to 8 fluid ounces of breast milk or iron-
fortified infant formula; and 0 to 3 tablespoons of iron-fortified dry
infant cereal (optional).
(3) 8 through 11 months. 6 to 8 fluid ounces of breast milk or iron-
fortified infant formula; 2 to 4 tablespoons of iron-fortified dry
infant cereal; and 1 to
[[Page 102]]
4 tablespoons of fruit or vegetable of appropriate consistency or a
combination of both.
[[Page 103]]
Breakfast Pattern for Infants
--------------------------------------------------------------------------------------------------------------------------------------------------------
Birth through 3 months 4 through 7 months 8 through 11 months
--------------------------------------------------------------------------------------------------------------------------------------------------------
Breakfast........................ 4-6 fl.oz. formula 1 or breast milk 2, 4-8 fl. oz. formula 1 or breast milk 6-8 fl. oz. formula 1 or breast milk
32,3; 2,3; and
0-3 Tbsp. Infant cereal 1,4 2-4 Tbsp. infant cereal 1; and
1-4 Tbsp. fruit and/or vegetable.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Infant formula and dry infant cereal shall be iron-fortified.
\2\ It is recommended that breast milk be served in place of formula from birth through 11 months.
\3\ For some breastfed infants who regularly consume less than the minimum amount of breast milk per feeding, a serving of less than the minimum amount
of breast milk may be offered, with additional breast milk offered if the infant is still hungry.
\4\ A serving of this component shall be optional.
[[Page 104]]
(j) Additional foods. Additional foods may be served with breakfasts
as desired to participating children over 1 year of age.
(k) Choice. To provide variety and to encourage consumption and
participation, schools should, whenever possible, provide a selection of
menu items and foods from which children may make choices. When a school
offers a selection of more than one type of breakfast or when it offers
a variety of menu items and foods and milk for choice as a reimbursable
breakfast, the school shall offer all children the same selection
regardless of whether the children are eligible for free or reduced
price breakfasts or pay the school food authority designated full price.
The school may establish different unit prices for each type of
breakfast offered provided that the benefits made available to children
eligible for free or reduced price breakfasts are not affected.
(l) Nutrition disclosure. School food authorities are encouraged to
make information available indicating efforts to meet the nutrition
standards in paragraph (a) of this section.
(m) Implementation of nutrition standards. School food authorities
shall comply with the 1990 Dietary Guidelines for Americans as provided
in paragraph (a) of this section no later than School Year 1996-97
except that State agencies may grant waivers to postpone implementation
until no later than School Year 1998-99. Such waivers shall be granted
by the State agency using guidance provided by the Secretary.
[60 FR 31217, June 13, 1995, 60 FR 57147, Nov. 14, 1995, as amended at
62 FR 10190, Mar. 6, 1997; 64 FR 61774, Nov. 15, 1999]
Sec. 220.8a Breakfast components and quantities for the meal pattern.
(a)(1) Food components--Except as otherwise provided in this section
and in any appendix to this part, a breakfast eligible for Federal cash
reimbursement shall contain, at a minimum, the following food components
in the quantities specified in the table in paragraph (a)(2) of this
section:
(i) A serving of fluid milk served as a beverage or on cereal or
used in part for each purpose;
(ii) A serving of fruit or vegetable or both, or full-strength fruit
or vegetable juice; and
(iii) Two servings from one of the following components or one
serving from each:
(A) Bread/Bread alternate
(B) Meat/Meat alternate
(2) Minimum required breakfast quantities. Except as otherwise
provided in this section and in any appendix to this part, a breakfast
eligible for Federal cash reimbursement shall contain at least the per
breakfast minimum quantities of each item for the age and grade levels
specified in the following table:
School Breakfast Pattern
[Required minimum serving sizes]
----------------------------------------------------------------------------------------------------------------
Food components/items Ages 1 and 2 Ages 3, 4, and 5 Grades K-12
----------------------------------------------------------------------------------------------------------------
Milk (Fluid):
(As a beverage, on cereal, or \1/2\ cup.............. \3/4\ cup................. \1/2\ pint.
both).
JUICE/FRUIT/VEGETABLE:\1\
Fruit and/or vegetable; or Full- \1/4\ cup.............. \1/2\ cup................. \1/2\ cup.
strength: Fruit Juice or
Vegetable Juice.
Bread/Bread Alternates:\2\
--Bread (whole-grain or \1/2\ slice............ \1/2\ slice............... 1 slice.
enriched).
--Biscuit, rolll, muffin or \1/2\ serving.......... \1/2\ serving............. 1 serving.
equal serving of cornbread,
etc. (whole-grain or enriched
meal or flour.
--Cereal (whole-grain or \1/4\ cup or \1/3\ oz.. \1/3\ cup or \1/2\ oz..... \3/4\ cup or 1 oz.
enriched or fortified).
[[Page 105]]
Meat/Meat Alternates:
--Meat/poultry, or fish........ \1/2\ oz............... \1/2\ oz.................. 1 oz.
--Cheese....................... \1/2\ oz............... \1/2\ oz.................. 1 oz.
--Egg (large).................. \1/2\.................. 1/2....................... \1/2\.
--Peanut Butter of other nut or 1 Tbsp................. 1 Tbsp.................... 2 Tbsp.
seed butters.
--Cooked dry beans and peas.... 2 Tbsp................. 2 Tbsp.................... 4 Tbsp.
--Nuts and/or Seeds (as listed \1/2\ oz............... \1/2\ oz.................. 1 oz.
in program guidance)\3\.
--Yogurt, plain or flavored, 2 oz. or \1/4\ cup..... 2 oz. or \1/4\ cup........ 4 oz. or \1/2\ cup.
unsweetened or sweetened.
----------------------------------------------------------------------------------------------------------------
\1\ A citrus juice or fruit or a fruit or vegetable or juice that is a good source of vitamin C (See Menu
Planning Guide for School Food Service--PA-1260) is recommended to be offered daily.
\2\ See Food Buying Guide for Child Nutrition Programs, PA-1331 (1984) for serving sizes for breads and bread
alternates.
\3\ No more than one ounce of nuts and/or seeds may be served in any one meal.
(3) Offer Versus Serve. Each school shall offer its students all
four required food items as set forth under paragraph (a)(1) of this
section. At the option of the school food authority, each school may
allow students to refuse one food item from any component that the
student does not intend to consume. The refused food item may be any of
the four items offered to the student. A student's decision to accept
all four food items or to decline one of the four food items shall not
affect the charge for breakfast.
(b) Infant meal pattern. When infants from birth through 11 months
of age participate in the Program, an infant breakfast shall be offered.
Foods within the infant breakfast pattern shall be of texture and
consistency appropriate for the particular age group being served, and
shall be served to the infant during a span of time consistent with the
infant's eating habits. For infants 4 through 7 months of age, solid
foods are optional and should be introduced only when the infant is
developmentally ready. Whenever possible, the school should consult with
the infant's parent in making the decision to introduce solid foods.
Solid foods should be introduced one at a time on a gradual basis with
the intent of ensuring health and nutritional well-being. For infants 8
through 11 months of age, the total amount of food authorized in the
meal patterns set forth below must be provided in order to qualify for
reimbursement. Additional foods may be served to infants 4 months of age
and older with the intent of improving their overall nutrition. Breast
milk, provided by the infant's mother, may be served in place of infant
formula from birth through 11 months of age. Either breast milk or iron-
fortified infant formula shall be served for the entire first year. For
some breastfed infants who regularly consume less than the minimum
amount of breast milk per feeding, a serving of less than the minimum
amount of breast milk may be offered. In these situations, additional
breast milk must be offered if the infant is still hungry. The infant
breakfast pattern shall contain, as a minimum, each of the following
components in the amounts indicated for the appropriate age groups:
(1) Birth through 3 months. 4 to 6 fluid ounces of breast milk or
iron-fortified infant formula.
(2) 4 through 7 months. 4 to 8 fluid ounces of breast milk or iron-
fortified infant formula; and 0 to 3 tablespoons of iron-fortified dry
infant cereal (optional).
(3) 8 through 11 months. 6 to 8 fluid ounces of breast milk or iron-
fortified infant formula; 2 to 4 tablespoons of iron-fortified dry
infant cereal; and 1 to 4 tablespoons of fruit or vegetable of
appropriate consistency or a combination of both.
[[Page 106]]
Breakfast Pattern for Infants
----------------------------------------------------------------------------------------------------------------
Birth through 3 months 4 through 7 months 8 through 11 months
----------------------------------------------------------------------------------------------------------------
Breakfast........................ 4-6 fl.oz. formula 1 or 4-8 fl. oz. formula 1 or 6-8 fl. oz. formula 1 or
breast milk 2,3. breast milk 2,3;. breast milk 2,3; and
0-3 Tbsp. Infant cereal 2-4 Tbsp. Infant cereal
1,4. 1; and
1-4 Tbsp. Fruit and/or
vegetable.
----------------------------------------------------------------------------------------------------------------
\1\ Infant formula and dry infant cereal shall be iron-fortified.
\2\ It is recommended that breast milk be served in place of formula from birth through 11 months.
\3\ For some breastfed infants who regularly consume less than the minimum amount of breast milk per feeding, a
serving of less than the minimum amount of breast milk may be offered, with additional breast milk offered if
the infant is still hungry.
\4\ A serving of this component shall be optional.
[[Page 107]]
(c) Additional foods may be served with breakfasts as desired to
participating children over 1 year of age.
(d) If emergency conditions prevent a school normally having a
supply of milk from temporarily obtaining delivery thereof, the State
agency, or FNSRO where applicable, may approve reimbursement for
breakfast served without milk during the emergency period.
(e) FNS may approve variations in the food components of the
breakfast on an experimental or on a continuing basis in any school
where there is evidence that such variations are nutritionally sound and
are necessary to meet ethnic, religious, economic or physical needs.
(f) Schools shall make substitutions in foods listed in this section
for students who are considered handicapped under 7 CFR part 15b and
whose handicap restricts their diet. Schools may also make substitutions
for nonhandicapped students who are unable to consume the regular
breakfast because of medical or other special dietary needs.
Substitutions shall be made on a case-by-case basis only when supported
by a statement of the need for substitutions that includes recommended
alternate foods, unless otherwise exempted by FNS. Such statement shall,
in the case of a handicapped student, be signed by a physician or, in
the case of a nonhandicapped student, by a recognized medical authority.
(g) The inability of a school to obtain a supply of milk on a
continuing basis to meet the breakfast requirements in paragraphs (a)
and (b) of this section shall not bar it from participation in the
Program. In such cases the State agency, or FNSRO were applicable, may
approve the service of breakfasts without milk: Provided, however, That
an equivalent amount of canned, whole dry, or nonfat dry milk is used in
the preparation of the components of the breakfast patterns listed in
paragraphs (a)(1) and (b)(3) of this section.
(h) For the period ending September 30, 1977, the Secretary, with
the concurrence of officials of the Trust Territory of the Pacific
Islands, shall establish a breakfast pattern or patterns which are
consonant with local food consumption patterns and which, given
available food supplies and food service equipment and facilities,
provide optimum nutrition consistent with sound dietary habits for
participating children, for use in the Trust Territory in lieu of the
breakfast patterns listed in paragraphs (a) and (b) of this section. The
requirements for such patterns shall be attached to and made a part of
the written agreement required under Sec. 220.3 of this part.
(44 U.S.C. 3506)
[Amdt. 25, 41 FR 34759, Aug. 17, 1976, as amended by Amdt. 26, 41 FR
52057, Nov. 26, 1976; 47 FR 746, Jan. 7, 1982; 53 FR 25308, July 6,
1988, 53 FR 48632; Amdt. 56, 54 FR 2990, Jan. 23, 1989; Amdt. 57, 54 FR
13047, Mar. 30, 1989, 54 FR 13605, Apr. 4, 1989. Redesignated at 60 FR
31217, June 13, 1995; amended at 60 FR 31222, June 13, 1995; 62 FR
10191, Mar. 6, 1997; 64 FR 61775, Nov. 15, 1999]
Sec. 220.9 Reimbursement payments.
(a) State agencies, or FNSRO's where applicable, shall make
reimbursement payments to schools only in connection with breakfasts
meeting the requirements of Sec. 220.8 or Sec. 220.8a, whichever is
applicable, and reported in accordance with Sec. 220.11(b) of this part.
School Food Authorities shall plan for and prepare breakfasts on the
basis of participation trends, with the objective of providing one
breakfast per child per day. Production and participation records shall
be maintained to demonstrate positive action toward this objective. In
recognition of the fluctuation in participation levels which makes it
difficult to precisely estimate the number of breakfasts needed and to
reduce the resultant waste, any excess breakfasts that are prepared may
be served to eligible children and may be claimed for reimbursement
unless the State agency, or FNSRO where applicable, determines that the
School Food Authority has failed to plan and prepare breakfasts with the
objective of providing one breakfast per child per day. In no event
shall the School Food Authority claim reimbursement for free and reduced
price breakfasts in excess of the number of children approved for free
and reduced price meals.
(b) The rates of reimbursement for breakfasts served to eligible
children in schools not in severe need are the applicable national
average payment
[[Page 108]]
factors for breakfasts. The maximum rates of reimbursement for
breakfasts served to eligible children in schools determined to be in
severe need are those prescribed by the Secretary. National average
payment factors and maximum rates of reimbursement for the School
Breakfast Program shall be prescribed annually by the Secretary in the
Federal Register.
(c) The total reimbursement for breakfasts served to eligible
children in, (1) schools not in severe need, and (2) severe need schools
in State's with State Breakfast mandates as provided for in
Sec. 220.9(e)(3) (i) and (ii) in any School Food Authority during the
school year shall not exceed the sum of the products obtained by
multiplying the total numbers of such free, reduced price and paid
breakfasts, respectively, by the applicable rate of reimbursement for
each type of breakfast as prescribed for the school year.
(d) For any school year, severe need reimbursement payments to any
School Food Authority except as provided for in paragraph (c) of this
section shall be the lesser of: (1) The cost of providing free and
reduced price breakfast to eligible children in schools determined to be
in severe need, less the reduced price payments received by such
schools; or (2) the number of free and the number of reduced price
breakfasts, respectively, that are served to eligible children in
schools determined to be in severe need, multiplied by the applicable
severe need reimbursement rates for such breakfasts.
(e) Severe need schools. The State agency, or FNSRO where
applicable, shall determine whether a school is in severe need based on
the following eligibility criteria: (1) The reimbursement rate per meal
established by the Secretary is insufficient to cover the costs of the
school's breakfast program; (2) the school is participating in or
desiring to initiate a breakfast program; and (3) 40 percent or more of
the lunches served to students at the school in the second preceding
school year were served free or at a reduced price. In addition, schools
which are required by State law to serve breakfasts and which fail to
satisfy the required 40 percent eligibility criteria are eligible for
severe need reimbursement rates only for the following limited time
periods:
(i) In States where the State legislature meets annually, the
schools may receive severe need reimbursement rates until July 1, 1983;
and (ii) in States where the State legislature meets biennially, the
schools may receive severe need reimbursement rates until July 1, 1984.
State agencies shall maintain on file, and have available for review and
audits, their eligibility criteria for determining the severe need of
schools and the source of the data to be used in making individual
determinations. The State agency, or FNSRO where applicable, shall be
responsible for establishing systems for determining breakfast costs
where such costs are necessary to the determination of whether or not a
school is in severe need.
(Sec. 6, Pub. L. 95-627, 92 Stat. 3620 (42 U.S.C. 1776; secs. 801, 803,
812; Pub. L. 97-35, 95 Stat. 521-535, 42 U.S.C. 1753, 1759(a), 1758,
1773; sec. 819, Pub. L. 97-35, 95 Stat. 533 (42 U.S.C. 1759a, 1773 and
1757); 44 U.S.C. 3506))
[Amdt. 25, 41 FR 34760, Aug. 17, 1976, as amended by Amdt. 29, 44 FR
48159, Aug. 17, 1979; Amdt. No. 38, 46 FR 50928, Oct. 16, 1981; 46 FR
51368, Oct. 20, 1981; 47 FR 746, Jan. 7, 1982; 47 FR 31375, July 20,
1982; 48 FR 40196, 40197, Sept. 6, 1983; 60 FR 31222, June 13, 1995]
Sec. 220.10 Effective date for reimbursement.
Reimbursement payments under the School Breakfast Program may be
made only to School Food Authorities operating under an agreement with
the State Agency or the Department, and may be made only after execution
of the agreement. Such payments may include reimbursement in connection
with breakfasts served in accordance with provisions of the program in
the calendar month preceding the calendar month in which the agreement
is executed.
[32 FR 35, Jan. 5, 1967, as amended by Amdt. 9, 37 FR 9613, May 13,
1972]
Sec. 220.11 Reimbursement procedures.
(a) To be entitled to reimbursement under this part, each School
Food Authority shall submit to the State agency, or FNSRO where
applicable, a monthly Claim for Reimbursement.
[[Page 109]]
(b) Claims for Reimbursement shall include data in sufficient detail
to justify the reimbursement claimed and to enable the State agency to
provide the Reports of School Program Operations required under
Sec. 220.13(b)(2). Unless otherwise approved by FNS, the Claim for
Reimbursement for any month shall include only breakfasts served in that
month except if the first or last month of Program operations for any
year contains 10 operating days or less, such month may be added to the
Claim for Reimbursement for the appropriate adjacent month; however,
Claims for Reimbursement may not combine operations occurring in two
fiscal years. If a single State agency administers any combination of
the Child Nutrition Programs, the SFA shall be able to use a common
claim form with respect to claims for reimbursement for meals served
under those programs. A final Claim for Reimbursement shall be
postmarked and/or submitted to the State agency, or FNSRO where
applicable, not later than 60 days following the last day of the full
month covered by the claim. State agencies may establish shorter
deadlines at their discretion. Claims not postmarked and/or submitted
within 60 days shall not be paid with Program funds unless FNS
determines that an exception should be granted. The State agency, or
FNSRO where applicable, shall promptly take corrective action with
respect to any Claim for Reimbursement as determined necessary through
its claim review process or otherwise. In taking such corrective action,
State agencies may make upward adjustments in Program funds claimed on
claims filed within the 60 day deadline if such adjustments are
completed within 90 days of the last day of the claim month and are
reflected in the final Report of School Program Operations (FNS-10) for
the claim month which is required under Sec. 220.13(b)(2). Upward
adjustments in Program funds claimed which are not reflected in the
final FNS-10 for the claim month shall not be made unless authorized by
FNS. Downward adjustments in Program funds claimed shall always be made,
without FNS authorization, regardless of when it is determined that such
adjustments are necessary.
(c) Where a school participates in both the National School Lunch
Program and the School Breakfast Program, the State agency or FNSRO,
where applicable, may authorize the submission of one claim for
reimbursement to cover both programs.
(d) [Reserved]
(e) Notwithstanding any other provision of this section, the State
agency, or FNSRO where applicable, may advance funds available for the
School Breakfast Program to a School Food Authority in an amount equal
to the reimbursement estimated for the total number of breakfasts,
including free and reduced price breakfasts, to be served to children
for 1 month. The State agency, or FNSRO where applicable, shall require
School Food Authorities who receive advances of funds under the
provisions of this paragraph to make timely submissions of claims for
reimbursement on a monthly basis and shall suspend advances of funds in
the absence of such timely submissions. Following the receipt of claims
the State agency, or FNSRO where applicable, shall make such adjustments
as are necessary in such advances of funds to insure that the total
amount of reimbursement received by a School Food Authority for the
fiscal year will not exceed an amount equal to the number of breakfasts,
including free and reduced price breakfast, served to children times the
respective rates of reimbursement assigned by the State agency, or FNSRO
where applicable, in accordance with Sec. 220.9.
(Title 1, Chapter I, Pub. L. 96-38, 93 Stat. 98 (42 U.S.C. 1776a); secs.
807 and 808, Pub. L. 97-35, 95 Stat. 521-535, 42 U.S.C. 1772, 1784,
1760; sec. 819, Pub. L. 97-35, 95 Stat. 533 (42 U.S.C. 1759a, 1773,
1757); Pub. L. 97-370, 96 Stat. 1806)
[32 FR 35, Jan. 5, 1967, as amended by Amdt. 9, 37 FR 9613, May 13,
1972; 40 FR 30924, July 24, 1975; 45 FR 82622, Dec. 16, 1980; 47 FR
31376, July 20, 1982; 48 FR 40196, Sept. 6, 1983; Amdt. 49, 49 FR 18987,
May 4, 1984; 64 FR 50742, Sept. 20, 1999]
Sec. 220.12 Competitive food services.
(a) State agencies and School Food Authorities shall establish such
rules or regulations as are necessary to control the sale of foods in
competition with breakfasts served under the Program. Such rules or
regulations shall
[[Page 110]]
prohibit the sale of foods of minimal nutritional value, as listed in
appendix B of this part, in the food service areas during the breakfast
periods. The sale of other competitive foods may, at the discretion of
the State agency and the School Food Authority, be allowed in the food
service area during the breakfast period only if all income from the
sale of such foods accrues to the benefit of the nonprofit school food
service or the school or student organizations approved by the school.
State agencies and School Food Authorities may impose additional
restrictions on the sale of and income from all foods sold at any time
throughout schools participating in the School Breakfast Program.
(b)(1) Any person may submit a petition to FNS requesting that an
individual food be exempted from a category of foods of minimal
nutritional value listed in appendix B. In the case of artificially
sweetened foods, the petition must include a statement of the percent of
RDI for the eight nutrients listed in Sec. 220.2(i-1) that the food
provides per serving and the petitioner's source of this information. In
the case of all other foods, the petition must include a statement of
the percent of RDI for the eight nutrients listed in Sec. 220.2(i-1)
that the food provides per serving and per 100 calories and the
petitioner's source of this information. The Department will determine
whether or not the individual food is a food of minimal nutritional
value as defined Sec. 220.2(i-1), and will inform the petitioner in
writing of such determination, and the public by notice in the Federal
Register as indicated under paragraph (b)(3) of this section. In
determining whether an individual food is a food of minimal nutritional
value, discrete nutrients added to the food will not be taken into
account.
(2) Any person may submit a petition to FNS requesting that foods in
a particular category of foods be classified as foods of minimal
nutritional value as defined in Sec. 220.2(i-1). The petition must
identify and define the food category in easily understood language,
list examples of the foods contained in the category and include a list
which the foods in that category usually contain. If, upon review of the
petition, the Department determines that the foods in that category
should not be classified as foods of minimal nutritional value, the
petitioner will be so notified in writing. If upon review of the
petition, the Department determines that there is a substantial
likelihood that the foods in that category should be classified as foods
of minimal nutritional value as defined in Sec. 220.2(i-1), the
Department shall at that time inform the petitioner. In addition, the
Department shall publish a proposed rule restricting the sale of the
foods in that category, setting forth the reasons for this action, and
soliciting public comments. On the basis of comments received within 60
days of publication of the proposed rule and other available
information, the Department will determine whether the nutrient
composition of the foods indicates that the category should be
classified as a category of foods of minimal nutritional value.
The petitioner shall be notified in writing and the public shall be
notified of the Department's final determination upon publication in the
Federal Register as indicated under section (b)(3) of this section.
(3) By May 1 and November 1 of each year, the Department shall amend
appendix B to exclude those individual foods identified under paragraph
(b)(1) of this section, and to include those categories of foods
identified under paragraph (b)(2) of this section, Provided That there
are necessary changes.
(Sec. 819, Pub. L. 97-35, 95 Stat. 533 (42 U.S.C. 1759a, 1773 and 1757))
[Amdt. 32, 45 FR 6771, Jan. 29, 1980, as amended by Amdt. 34, 45 FR
76937, Nov. 21, 1980; 50 FR 20547, May 17, 1985; 59 FR 23614, May 6,
1994]
Sec. 220.13 Special responsibilities of State agencies.
(a) [Reserved]
(a-1) Each State agency, or FNSRO where applicable, shall require
each School Food Authority of a school participating in the School
Breakfast Program to develop and file for approval a free and reduced
price policy statement in accordance with paragraph (a) of Sec. 220.7.
[[Page 111]]
(b) Records and reports. (1) Each State agency shall maintain
Program records as necessary to support the reimbursement payments made
to School Food Authorities under Sec. 220.9 and the reports submitted to
FNS under Sec. 220.13(b)(2). The records may be kept in their original
form or on microfilm, and shall be retained for a period of three years
after the date of submission of the final Financial Status Report for
the fiscal year, except that if audit findings have not been resolved,
the records shall be retained beyond the three-year period as long as
required for the resolution of the issues raised by the audit.
(2) Each State agency shall submit to FNS a final Report of School
Program Operations (FNS-10) for each month which shall be limited to
claims submitted in accordance with Sec. 220.11(b) and which shall be
postmarked and/or submitted no later than 90 days following the last day
of the month covered by the report. States shall not receive Program
funds for any month for which the final report is not submitted within
this time limit unless FNS grants an exception. Upward adjustments to a
State agency's report shall not be made after 90 days from the month
covered by the report unless authorized by FNS. Downward adjustments
shall always be made, without FNS authorization, regardless of when it
is determined that such adjustments are necessary. Adjustments shall be
reported to FNS in accordance with procedures established by FNS. Each
State agency shall also submit to FNS a quarterly Financial Status
Report (SF-269) on the use of Program funds. Such reports shall be
postmarked and/or submitted no later than 30 days after the end of each
fiscal year quarter. Obligations shall be reported only for the fiscal
year in which they occur. A final Financial Status Report for each
fiscal year shall be postmarked and/or submitted to FNS within 120 days
after the end of the fiscal year. FNS shall not be responsible for
reimbursing unpaid Program obligations reported later than 120 days
after the close of the fiscal year in which they were incurred.
(c) Each State agency shall promptly investigate complaints received
or irregularities noted in connection with the operation of either
program, and shall take appropriate action to correct any
irregularities. State Agencies shall maintain on file evidence of such
investigations and actions. FNS or OI shall make investigations at the
request of the State Agency or where FNS or OI determines investigations
are appropriate.
(d) The State agency shall release to FNS any Federal funds made
available to it under the Act which are unobligated at the end of each
fiscal year. Any such funds shall remain available to FNS for the
purposes of the programs authorized by the Act until expended. Release
of funds by the State Agency shall be made as soon as practicable, but
in any event not later than 30 days following demand by FNSRO and shall
be reflected by related adjustment in the State Agency's Letter of
Credit.
(e) State agencies shall provide School Food Authorities with
monthly information on foods available in plentiful supply, based on
information provided by the Department.
(f) Each State agency shall provide program assistance as follows:
(1) Each State agency or FNSRO where applicable shall provide
consultative, technical, and managerial personnel to administer
programs, monitor performance, and measure progress toward achieving
program goals.
(2) State agencies shall conduct reviews of schools participating in
the Program for compliance with the provisions of this part when such
schools are being reviewed under the provisions identified under
Sec. 210.18(i) of this title. Compliance reviews of participating
schools shall focus on the reviewed school's compliance with the
required certification, counting and breakfast service procedures.
School food authorities may appeal a denial of all or a part of the
Claim for Reimbursement or withholding of payment arising from review
activity conducted by the State agency under Sec. 210.18 of this title
or by FNS under Sec. 210.30(d)(2) of this title. Any such appeal shall
be subject to the procedures set forth under Sec. 210.18(q) of this
title or Sec. 210.30(d)(3) of this title, as appropriate.
[[Page 112]]
(3) For the purposes of compliance with the 1990 Dietary Guidelines
for Americans and the calorie and nutrient levels specified in
Sec. 220.8, the State agency shall follow the provisions specified in
Sec. 210.19(a)(1) of this chapter.
(4) Such assistance shall include visits to participating schools to
ensure compliance with program regulations and with the Department's
nondiscrimination regulations (part 15 of this title), issued under
title VI, of the Civil Rights Act of 1964.
(5) Documentation of such assistance shall be maintained on file by
the State agency, or FNSRO where applicable.
(g) State agencies shall adequately safeguard all assets and assure
that they are used solely for authorized purposes.
(h) [Reserved]
(i) Each State agency, or FNS where applicable, shall establish a
financial management system under which School Food Authorities shall
account for all revenues and expenditures of their nonprofit school food
service. The system shall prescribe the allowability of nonprofit school
food service expenditures in accordance with this part and, as
applicable, the cost principles contained in OMB Circular A-87 and 7 CFR
part 3015. The system shall permit determination of school food service
net cash resources, and shall include any criteria for approval of net
cash resources in excess of three months average expenditures. In
addition, School Food Authorities shall be required to account
separately for other food services which are operated by the School Food
Authority.
(j) During audits, supervisory assistance reviews, or by other
means, State agencies, or FNSROs where applicable, shall be responsible
for monitoring the net cash resources of the nonprofit school food
service of each School Food Authority participating in the Program. In
the event that such resources exceed three months average expenditures
for the School Food Authority's nonprofit school food service, or such
amount as may be approved by the State agency or FNSRO where applicable,
the State agency or FNSRO where applicable, may require the School Food
Authority to reduce children's prices, improve food quality or take
other actions designed to improve the nonprofit school food service. In
the absence of any such action, adjustments in the rates of
reimbursement under the Program shall be made.
(k)State agencies shall require compliance by School Food
Authorities with applicable provisions of this part.
(44 U.S.C. 3506; sec. 812, Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C.
1759a); sec. 819, Pub. L. 97-35, 95 Stat. 533 (42 U.S.C. 1759a, 1773 and
1757); Pub. L. 79-396, 60 Stat. 231 (42 U.S.C. 1751); Pub. L. 89-642, 80
Stat 885-890 (42 U.S.C. 1773); Pub. L. 91-248, 84 Stat. 207 (42 U.S.C.
1759))
[32 FR 37, Jan. 5, 1967. Redesignated by Amdt. 2, 33 FR 14513, Sept. 27,
1968]
Editorial Note: For Federal Register citations affecting
Sec. 220.13, see the List of CFR Sections Affected in the Finding Aids
section of this volume.
Sec. 220.14 Claims against school food authorities.
(a) State agencies shall disallow any portion of a claim and recover
any payment made to a School Food Authority that was not properly
payable under this part. State agencies will use their own procedures to
disallow claims and recover overpayments already made.
(b) [Reserved]
(c) The State agency may refer to CND through the FNSRO for
determination any action it proposes to take under this section.
(d) The State agency shall maintain all records pertaining to action
taken under this section. Such records shall be retained for a period of
3 years after the end of the fiscal year to which they pertain.
(e) If CND does not concur with the State agency's action in paying
a claim or a reclaim, or in failing to collect an overpayment, CND shall
assert a claim against the State agency for the amount of such claim,
reclaim, or overpayment. In all such cases the State agency shall have
full opportunity to submit to CND evidence or information concerning the
action taken. If, in the determination of CND, the State agency's action
was unwarranted, the State agency shall promptly pay to FNS the amount
of the claim, reclaim, or overpayment.
[[Page 113]]
(f) The amounts recovered by the State agency from Schools may be
utilized, first, to make payments to School Food Authorities for the
purposes of the related program during the fiscal year for which the
funds were initially available, and second to repay any State funds
expended in the reimbursement of claims under the program and not
otherwise repaid. Any amounts recovered which are not so utilized shall
be returned to FNS in accordance with the requirements of this part.
(g) With respect to School Food Authorities of schools in which the
program is administered by FNSRO, when FNSRO disallows a claim or a
portion of a claim, or makes a demand for refund of an alleged
overpayment, it shall notify the School Food Authority of the reasons
for such disallowance or demand and the School Food Authority shall have
full opportunity to submit evidence or to file reclaims for any amounts
disallowed or demanded in the same manner as that afforded in this
section to School Food Authorities of schools in which the program is
administered by State agencies.
(h) In the event that the State agency or FNSRO, where applicable,
finds that a school is failing to meet the requirements of
Sec. 220.8(g), Sec. 220.8(i)(2) and (i)(3) or 220.8a(a)(1), (b)(2), and
(b)(3), whichever is applicable, the State agency or FNSRO need not
disallow payment or collect an overpayment arising out of such failure,
if the State agency or FNSRO takes such other action as, in its opinion,
will have a corrective effect.
(i) The Secretary shall have the authority to determine the amount
of, to settle, and to adjust any claim arising under the Program, and to
compromise or deny such claim or any part thereof. The Secretary shall
also have the authority to waive such claims if the Secretary determines
that to do so would serve the purposes of the Program. This provision
shall not diminish the authority of the Attorney General of the United
States under section 516 of Title 28, U.S. Code, to conduct litigation
on behalf of the United States.
(44 U.S.C. 3506; secs. 804, 816 and 817, Pub. L. 97-35, 95 Stat. 521-535
(42 U.S.C. 1753, 1756, 1759, 1771 and 1785))
[32 FR 37, Jan. 5, 1967. Redesignated by Amdt. 2, 33 FR 14513, Sept. 27,
1968, and amended by Amdt. 9, 37 FR 9614, May 13, 1972; 40 FR 30925,
July 24, 1975. Redesignated and amended by Amdt. 25, 41 FR 34757, 34760,
Aug. 17, 1976; 47 FR 746, Jan. 7, 1982; Amdt. 42, 47 FR 14134, Apr. 2,
1982; 60 FR 31222, June 13, 1995]
Sec. 220.15 Management evaluations and audits.
(a) State agencies and school food authorities shall comply with the
requirements of part 3015 of this title concerning the audit
requirements for recipients and subrecipients of the Department's
financial assistance.
(b) These requirements call for organization-wide financial and
compliance audits to ascertain whether financial operations are
conducted properly; financial statements are presented fairly;
recipients and subrecipients comply with the laws and regulations that
affect the expenditures of Federal funds; recipients and subrecipients
have established procedures to meet the objectives of federally assisted
programs; and recipients and subrecipients are providing accurate and
reliable information concerning grant funds. States and school food
authorities shall use their own procedures to arrange for and prescribe
the scope of independent audits, provided that such audits comply with
the requirements set forth in part 3016 of this title.
(c) Each State agency shall provide FNS with full opportunity to
conduct management evaluations (including visits to schools) of all
operations of the State agency under the programs covered by this part
and shall provide OA with full opportunity to conduct audits (including
visits to schools) of all operations of the State agency under such
programs. Each State agency shall make available its records, including
records of the receipt and expenditure of funds under such programs,
upon a reasonable request by
[[Page 114]]
FNS or OA. OA shall also have the right to make audits of the records
and operations of any school.
(d) In conducting management evaluations, reviews or audits for any
fiscal year, the State agency, FNS, or OIG may disregard any overpayment
if the total overpayment does not exceed $600 or, in the case of State
agency claims in State administered Programs, it does not exceed the
amount established under State law, regulations or procedure as a
minimum amount for which claim will be made for State losses but not to
exceed $600. However, no overpayment is to be disregarded where there is
substantial evidence of violations of criminal law or civil fraud
statutes.
(Secs. 805 and 819, Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C. 1773);
sec. 812, Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C. 1759a))
[40 FR 30925, July 24, 1975. Redesignated and amended by Amdt. 25, 41 FR
34757, 34760, Aug. 17, 1976; 43 FR 59825, Dec. 22, 1978; Amdt. 41, 47 FR
14135, Apr. 2, 1982; Amdt. 43, 47 FR 18564, Apr. 30, 1982; Amdt. 56, 54
FR 2990, Jan. 23, 1989; 57 FR 38587, Aug. 26, 1992; 59 FR 1894, Jan. 13,
1994; 64 FR 50742, Sept. 20, 1999]
Sec. 220.16 Procurement standards.
(a) Requirements. State agencies and School Food Authorities shall
comply with the requirements of the Office of Management and Budget
(OMB) Circular A-102 and the Department's Uniform Federal Assistance
Regulations, 7 CFR part 3015, subpart S (46 FR 55658) concerning the
procurement of supplies, food, equipment and other services with Program
funds. These requirements are adopted by FNS to ensure that such
materials and services are obtained for the Program efficiently and
economically and in compliance with applicable laws and executive
orders.
(b) Contractual responsibilities. The standards contained in OMB
Circular A-102 and 7 CFR 3015, do not relieve the State agency or School
Food Authority of any contractual responsibilities under its contract.
The State agency or School Food Authority is the responsible authority,
without recourse to FNS, regarding the settlement and satisfaction of
all contractual and administrative issues arising out of procurements
entered into in connection with the Program. This includes but is not
limited to: source evaluation, protests, disputes, claims, or other
matters of a contractual nature. Matters concerning violation of law are
to be referred to the local, State or Federal authority that has proper
jurisdiction.
(c) Procurement procedure. The State agency or School Food Authority
may use their own procurement procedures which reflect applicable State
and local laws and regulations, provided that procurements made with
Program funds adhere to the standards set forth in OMB Circular A-102
and 7 CFR part 3015.
(d) Buy American.--(1) Definition of domestic commodity or product.
In this paragraph (d), the term ``domestic commodity or product''
means--
(i) An agricultural commodity that is produced in the United States;
and
(ii) A food product that is processed in the United States
substantially using agricultural commodities that are produced in the
United States.
(2) Requirement.--(i) In general. Subject to paragraph (d)(2)(ii) of
this section, the Department shall require that a school food authority
purchase, to the maximum extent practicable, domestic commodities or
products.
(ii) Limitations. Paragraph (d)(2)(i) of this section shall apply
only to--
(A) A school food authority located in the contiguous United States;
and
(B) A purchase of domestic commodity or product for the school
breakfast program under this part.
(3) Applicability to Hawaii. Paragraph (d)(2)(i) of this section
shall apply to a school food authority in Hawaii with respect to
domestic commodities or products that are produced in Hawaii in
sufficient quantities to meet the needs of meals provided under the
school breakfast program under this part.
(Pub. L. 79-396, 60 Stat. 231 (42 U.S.C. 1751); Pub. L. 89-642, 80 Stat.
885-890 (42 U.S.C. 1773); Pub. L. 91-248, 84 Stat. 207 (42 U.S.C. 1759))
[Amdt. 45, 48 FR 19355, Apr. 29, 1983, as amended at 64 FR 50743, Sept.
20, 1999]
Sec. 220.17 Prohibitions.
(a) In carrying out the provisions of this part, the Department
shall not impose any requirements with respect to
[[Page 115]]
teaching personnel, curriculum, instructions, methods of instruction,
and materials of instruction in any school as a condition for
participation in the Program.
(b) The value of assistance to children under the Act shall not be
considered to be income or resources for any purposes under any Federal
or State laws, including, but not limited to, laws relating to taxation,
welfare, and public assistance programs. Expenditure of funds from State
and local sources for the maintenance of food programs for children
shall not be diminished as a result of funds received under the Act.
[32 FR 37, Jan. 5, 1967. Redesignated by Amdt. 2, 33 FR 14513, Sept. 27,
1968. Redesignated and amended by Amdt. 25, 41 FR 34757, 34760, Aug. 17,
1976; 64 FR 50743, Sept. 20, 1999]
Sec. 220.18 Suspension, termination and grant closeout procedures.
Whenever it is determined that a State agency has materially failed
to comply with the provisions of this part, or with FNS guidelines and
instructions, FNS may suspend or terminate the Program in whole, or in
part, or take any other action as may be available and appropriate. A
State agency may also terminate the Program by mutual agreement with
FNS. FNS and the State agency shall comply with the provisions of the
Department's Uniform Federal Assistance Regulations, 7 CFR part 3015,
subpart N concerning grant suspension, termination and closeout
procedures. Furthermore, the State agency or FNSRO were applicable,
shall apply these provisions to suspension or termination of the Program
in School Food Authorities.
[Amdt. 49, 49 FR 18988, May 4, 1984]
Sec. 220.19 Free and reduced price breakfasts.
The determination of the children to whom free and reduced price
breakfasts are to be served because of inability to pay the full price
thereof, and the serving of the breakfasts to such children, shall be
effected in accordance with part 245 of this chapter.
[Amdt. 25, 41 FR 34760, Aug. 17, 1976]
Sec. 220.20 Program information.
School Food Authorities desiring information concerning the program
should write to their State educational agency or to the appropriate
Food and Nutrition Service Regional Office as indicated below:
(a) In the States of Delaware, District of Columbia, Maryland, New
Jersey, Pennsylvania, Puerto Rico, Virginia, Virgin Islands, and West
Virginia: Mid-Atlantic Regional Office, FNS, U.S. Department of
Agriculture, Mercer Corporate Park, Corporate Boulevard, CN02150,
Trenton, New Jersey 08650.
(b) In the States of Alabama, Florida, Georgia, Kentucky,
Mississippi, North Carolina, South Carolina, and Tennessee: Southeast
Regional Office, FNS, U.S. Department of Agriculture, 1100 Spring
Street, NW., Atlanta, Georgia 30367.
(c) In the States of Illinois, Indiana, Michigan, Minnesota, Ohio,
and Wisconsin: Midwest Regional Office, FNS U.S. Department of
Agriculture, 50 E. Washington Street, Chicago, Illinois 60602.
(d) In the States of Arkansas, Louisiana, New Mexico, Oklahoma, and
Texas: Southwest Regional Office, FNS, U.S. Department of Agriculture,
1100 Commerce Street, Room 5-C-30, Dallas, Texas 75202.
(e) In the States of Alaska, American Samoa, Arizona, California,
Guam, Hawaii, Idaho, Nevada, Oregon, the Trust Territory of the Pacific
Islands, the Commonwealth of the Northern Mariana Island, and
Washington: Western Regional Office, FNS, U.S. Department of
Agriculture, 550 Kearny Street, Room 400, San Francisco, California
94108.
(f) In the States of Connecticut, Maine, Massachusetts, New
Hampshire, New York, Rhode Island, and Vermont: Northeast Regional
Office, FNS, U.S. Department of Agriculture, 10 Causeway Street, Room
501, Boston, Massachusetts 02222-1065.
(g) In the States of Colorado, Iowa, Kansas, Missouri, Montana,
Nebraska, North Dakota, South Dakota, Utah, and Wyoming: Mountain Plains
Regional Office, FNS, U.S. Department of
[[Page 116]]
Agriculture, 1244 Speer Boulevard, Suite 903, Denver, Colorado 80204.
(Sec. 10(a), Pub. L. 95-627, 92 Stat. 3623 (42 U.S.C. 1760); sec.
10(d)(3), Pub. L. 95-627, 92 Stat. 3624 (42 U.S.C. 1757); sec. 14, Pub.
L. 95-627, 92 Stat. 3625-3626; secs. 804, 816, 817 and 819, Pub. L. 97-
35, 95 Stat. 521-535 (42 U.S.C. 1753, 1756, 1759, 1771, 1773, and 1785))
[32 FR 37, Jan. 5, 1967. Redesignated at 49 FR 18988, May 4, 1984]
Editorial Note: For Federal Register citations affecting
Sec. 220.20, see the List of CFR Sections Affected in the Finding Aids
section of this volume.
Sec. 220.21 Information collection/recordkeeping--OMB assigned control numbers.
------------------------------------------------------------------------
Current OMB
7 CFR section where requirements are described control
number
------------------------------------------------------------------------
220.3(e)................................................... 0584-0327
220.5...................................................... 0584-0012
220.7(a)-(e)............................................... 0584-0329
0584-0012
0584-0026
220.8(f)................................................... 0584-0012
220.9(a)................................................... 0584-0012
220.11 (a), (b), (e)....................................... 0584-0012
0584-0002
0584-0341
220.12(b).................................................. 0584-0012
220.13 (a-1)-(c), (f)...................................... 0584-0026
0584-0002
0584-0341
0584-0012
220.14(d).................................................. 0584-0012
220.15..................................................... 0584-0012
------------------------------------------------------------------------
[Amdt. 56, 54 FR 2990, Jan. 23, 1989]
Appendix A to Part 220--Alternate Foods for Meals
formulated grain-fruit products
1. Schools may utilize the formulated grain-fruit products defined
in paragraph 3 as a food component in meeting the meal requirements of
this part under the following terms and conditions:
(a) Formulated grain-fruit products may be used to meet one bread/
bread alternate and the fruit/vegetable requirement in the breakfast
pattern specified in Sec. 220.8 or 220.8a, whichever is applicable.
(b) Only individually wrapped formulated grain-fruit products which
bear a label conforming to the following legend shall be utilized.
``This product conforms to U.S.D.A. Child Nutrition Program
specifications. For breakfast, it meets the requirements for fruit/
vegetable/juice and one bread/bread alternate.''
2. Only formulated grain-fruit products that have been accepted by
the Food and Nutrition Service (FNS) for use in the USDA child nutrition
programs may be labeled as provided in paragraph 1.(b) of this appendix.
Manufacturers seeking acceptance of their product shall furnish FNS a
chemical analysis, protein efficiency ratio analysis, and such other
pertinent data as may be requested by FNS. This information shall be
forwarded to: Director, Nutrition and Technical Services Staff, Food and
Nutrition Service, U.S. Department of Agriculture, Alexandria, Virginia
22302. All laboratory analyses are to be performed by independent or
other laboratories acceptable to FNS. (FNS prefers an independent
laboratory.) All laboratories shall retain the ``raw'' laboratory data
for a period of one year. Such information shall be made available to
FNS upon request.
3. To be accepted by FNS, products must have the following
characteristics and meet the following nutritional specifications:
(a) Types. There are two types of products: one is a grain-type
product and the other a grain-fruit type product.
(b) Ingredients. A grain-type product shall have grain as its
primary ingredient. A grain-fruit type product shall have fruit as its
primary ingredient. Both types of products must have at least 25 percent
of their weight derived from grain. All ingredients and/or components
shall comply with pertinent requirements or standards of the USDA and
the Food, Drug, and Cosmetic Act, as amended, and any regulations issued
thereunder.
(c) Nutritional specifications. Each serving of the product shall
meet the minimum compositional requirements in the following table. The
requirements as specified for those nutrients not limited by maximum
values will be deemed to have been met if reasonable overages of the
vitamins and minerals, within the limits of good manufacturing practice,
are present to insure that the required levels are maintained throughout
the expected shelf life under customary conditions of distribution and
storage. An exception will be made for vitamins or minerals which occur
naturally in an ingredient at such concentration that the level
specified will be substantially exceeded in the final product. Such
excess will be permitted but no lable claim of nutritional advantage can
be made for overages for any nutrients. Analytical methods employed
should be according to the standard procedures defined in the
Association of Official Analytical Chemists, 1970, ``Official Methods of
Analysis,'' 11th edition, Washington, DC or by appropriate analytical
procedures FNS considers reliable.
[[Page 117]]
Nutritional Levels of Grain-Fruit Products \1\
------------------------------------------------------------------------
Nutrient Unit Minimum Maximum
------------------------------------------------------------------------
Weight.......................... Ounce............... 2 4.0
PER............................. Casein=2.5.......... 2.0 .......
Moisture........................ Percent weight...... ....... 40.0
Fat \2\......................... ......do............ ....... 22.0
Fiber........................... ......do............ ....... 0.8
Protein (N x 6.25).............. Gram................ 5.0 .......
Energy.......................... Kilocalorie......... 250 .......
Vitamin A \3\................... International unit.. 1,115 1,675.0
Vitamin E....................... ......do............ 5 .......
Vitamin B12..................... Microgram........... 1.25 .......
Thiamin......................... Milligram........... .26 .......
Riboflavin...................... ......do............ .13 .......
Vitamin B6...................... ......do............ .26 .......
Vitamin C....................... ......do............ 20 .......
Niacin.......................... ......do............ 2.65 .......
Folacin......................... ......do............ .04 .......
Iron \4\........................ ......do............ 4.4 .......
Calcium......................... ......do............ 120 .......
Phosphorus...................... ......do............ 120 .......
Magnesium....................... ......do............ 30 .......
------------------------------------------------------------------------
\1\ These specifications are based on a nutrient level for acceptable
products plus \1/2\ pint of fluid milk (as defined in Sec. 220.2 of
the regulations (7 CFR part 220)) to provide at least 25 percent of
the Recommended Dietary Allowances (RDA), 1968, for 10- to 12-year-old
boys and girls for specified nutrients except magnesium and
kilocalories. Magnesium and kilocalories--at least 13 percent of this
RDA.
\2\ Although the maximum fat in these specifications is 22 percent,
consideration should be given to the development of formulated items
containing less fat. Most medical authorities recommend keeping the
dietary intake of fats at about \1/3\ of the day's calories. At least
5 percent of the total calories shall be from linoleic acid.
\3\ Vitamin A levels above the maximum of 1,675 I.U. will be allowed in
products containing this nutrient as a natural food, and if the
vitamin has not been added to the ingredients or foods.
\4\ Recommended sources of iron are ferric ammonium citrate, ferrous
fumarate, ferrous sulfates (FeSO4 or FeSO4 7H2 O), ferrous gluconate,
reduced iron, or other sources known to have a similar relative
biological value.
(Secs. 804, 816, 817, and 819, Pub. L. 97-35, 95 Stat. 521-535 (42
U.S.C. 1753, 1756, 1759, 1771, 1773 and 1785))
[Amdt. 18, 39 FR 11249, Mar. 27, 1974, as amended at 40 FR 37027, Aug.
25, 1975; Amdt. 45, 48 FR 195, Jan. 4, 1983; Amdt. 57, 54 FR 13048, Mar.
30, 1989; 60 FR 31222, June 13, 1995]
Appendix B to Part 220--Categories of Foods of Minimal Nutritional Value
(1) Soda Water--A class of beverages made by absorbing carbon
dioxide in potable water. The amount of carbon dioxide used is not less
than that which will be absorbed by the beverage at a pressure of one
atmosphere and at a temperature of 60 deg. F. It either contains no
alcohol or only such alcohol, not in excess of 0.5 percent by weight of
the finished beverage, as is contributed by the flavoring ingredient
used. No product shall be excluded from this definition because it
contains artificial sweeteners or discrete nutrients added to the food
such as vitamins, minerals and protein.
(2) Water ices. As defined by 21 CFR 135.160 Food and Drug
Administration Regulations except that water ices which contain fruit or
fruit juices are not included in this definition.
(3) Chewing gum. Flavored products from natural or synthetic gums
and other ingredients which form an insoluble mass for chewing.
(4) Certain candies. Processed foods made predominantly from
sweeteners or artificial sweeteners with a variety of minor ingredients
which characterize the following types: (a) Hard candy. A product made
predominantly from sugar (sucrose) and corn syrup which may be flavored
and colored, is characterized by a hard, brittle texture, and includes
such items as sour balls, fruit balls, candy sticks, lollipops,
starlight mints, after dinner mints, sugar wafers, rock candy, cinnamon
candies, breath mints, jaw breakers and cough drops.
(b) Jellies and gums. A mixture of carbohydrates which are combined
to form a stable gelatinous system of jelly-like character, and are
generally flavored and colored, and include gum drops, jelly beans,
jellied and fruit-flavored slices.
(c) Marshmallow candies. An aerated confection composed of sugar,
corn syrup, invert sugar, 20% water and gelatin or egg white to which
flavors and colors may be added.
(d) Fondant. A product consisting of microscopic-sized sugar
crystals which are separated by a thin film of sugar and/or invert sugar
in solution such as candy corn, soft mints.
(e) Licorice. A product made predominantly from sugar and corn syrup
which is flavored with an extract made from the licorice root.
(f) Spun candy. A product that is made from sugar that has been
boiled at high temperature and spun at a high speed in a special
machine.
(g) Candy coated popcorn. Popcorn which is coated with a mixture
made predominantly from sugar and corn syrup.
Schedule for Amending Appendix B
------------------------------------------------------------------------
Publication
Actions for publication ---------------------------------------
May November
------------------------------------------------------------------------
Deadline for receipt of Nov. 15........... May 15.
petitions by USDA.
USDA to notify petitioners of Feb. 1............ Aug. 1.
results of Departmental review
and publish proposed rule (if
applicable).
60 Day Comment Period........... Feb 1 through Apr. Aug. 1 through
1. Oct. 1.
Public Notice of Amendment of May 1............. Nov. 1.
Appendix B by.
------------------------------------------------------------------------
[[Page 118]]
Written petitions should be sent to the Chief, Technical Assistance
Branch, Nutrition and Technical Services Divisions, FNS, USDA,
Alexandria, Virginia 22302 on or before November 15 or May 15 of each
year. Petitions must include all information specified in
Sec. 210.15b(b) (1) or (2), and Sec. 220.12(b) (1) or (2) as
appropriate.
(Sec. 17, Pub. L. 95-166, 91 Stat. 1345 (42 U.S.C. 1779); secs. 804,
816, 817 and 819, Pub. L. 97-35, 95 Stat. 521-535 (42 U.S.C. 1753, 1756,
1759, 1771, 1773 and 1785))
[Amdt. 32, 45 FR 6772, Jan. 29, 1980, as amended at 45 FR 72081, Oct.
31, 1980; 45 FR 76937, Nov. 21, 1980; Amdt. 45, 48 FR 195, Jan. 4, 1983;
54 FR 18466, May 1, 1989]
Appendix C to Part 220--Child Nutrition (CN) Labeling Program
1. The Child Nutrition (CN) Labeling Program is a voluntary
technical assistance program administered by the Food and Nutrition
Service (FNS) in conjunction with the Food Safety and Inspection Service
(FSIS), and Agricultural Marketing Service (AMS) of the U.S. Department
of Agriculture (USDA), and National Marine Fisheries Service of the U.S.
Department of Commerce (USDC) for the Child Nutrition Programs. This
program essentially involves the review of a manufacturer's recipe or
product formulation to determine the contribution a serving of a
commercially prepared product makes toward meal pattern requirements and
a review of the CN label statement to ensure its accuracy. CN labeled
products must be produced in accordance with all requirements set forth
in this rule.
2. Products eligible for CN labels are as follows:
(a) Commercially prepared food products that contribute
significantly to the meat/meat alternate component of meal pattern
requirements of 7 CFR 210.10 or 210.10a, whichever ia applicable,
225.21, and 226.20 and are served in the main dish.
(b) Juice drinks and juice drink products that contain a minimum of
50 percent full-strength juice by volume.
3. For the purpose of this appendix the following definitions apply:
(a) ``CN label'' is a food product label that contains a CN label
statement and CN logo as defined in paragraph 3 (b) and (c) below.
(b) The ``CN logo'' (as shown below) is a distinct border which is
used around the edges of a ``CN label statement'' as defined in
paragraph 3(c).
[GRAPHIC] [TIFF OMITTED] TC17SE91.003
(c) The ``CN label statement'' includes the following:
(1) The product identification number (assigned by FNS),
(2) The statement of the product's contribution toward meal pattern
requirements of 7 CFR 210.10 or 210.10a, whichever is applicable, 220.8
or 220.8a, whichever is applicable, 225.21, and 226.20. The statement
shall identify the contribution of a specific portion of a meat/meat
alternate product toward the meat/meat alternate, bread/bread alternate,
and/or vegetable/fruit component of the meal pattern requirements. For
juice drinks and juice drink products the statement shall identify their
contribution toward the vegetable/fruit component of the meal pattern
requirements,
(3) Statement specifying that the use of the CN logo and CN
statement was authorized by FNS, and
(4) The approval date.
For example:
[[Page 119]]
[GRAPHIC] [TIFF OMITTED] TC17SE91.004
(d) Federal inspection means inspection of food products by FSIS,
AMS or USDC.
4. Food processors or manufacturers may use the CN label statement
and CN logo as defined in paragraph 3 (b) and (c) under the following
terms and conditions:
(a) The CN label must be reviewed and approved at the national level
by the Food and Nutrition Service and appropriate USDA or USDC Federal
agency responsible for the inspection of the product.
(b) The CN labeled product must be produced under Federal inspection
by USDA or USDC. The Federal inspection must be performed in accordance
with an approved partial or total quality control program or standards
established by the appropriate Federal inspection service.
(c) The CN label statement must be printed as an integral part of
the product label along with the product name, ingredient listing, the
inspection shield or mark for the appropriate inspection program, the
establishment number where appropriate, and the manufacturer's or
distributor's name and address.
(1) The inspection marking for CN labeled non-meat, non-poultry, and
non-seafood products with the exception of juice drinks and juice drink
products is established as follows:
[GRAPHIC] [TIFF OMITTED] TC17SE91.005
(d) Yields for determining the product's contribution toward meal
pattern requirements must be calculated using the Food Buying Guide for
Child Nutrition Programs (Program Aid Number 1331).
5. In the event a company uses the CN logo and CN label statement
inappropriately, the company will be directed to discontinue the use of
the logo and statement and the matter will be referred to the
appropriate agency for action to be taken against the company.
6. Products that bear a CN label statement as set forth in paragraph
3(c) carry a warranty. This means that if a food service authority
participating in the child nutrition programs purchases a CN labeled
product and uses it in accordance with the manufacturer's directions,
the school or institution will not have an audit claim filed against it
for the CN labeled product for noncompliance with the meal pattern
requirements of 7 CFR 210.10 or 210.10a, whichever is applicable, 220.8
or 220.8a, whichever is applicable, 225.21, and 226.20. If a State or
Federal auditor finds that a product that is CN labeled does not
actually meet the meal pattern requirements claimed on the label, the
auditor will report this finding to FNS. FNS will prepare a report of
the findings and send it to the appropriate divisions of FSIS and AMS of
the USDA, National Marine Fisheries Services of the USDC, Food and Drug
Administration, or the Department of Justice for action against the
company.
Any or all of the following courses of action may be taken:
(a) The company's CN label may be revoked for a specific period of
time;
(b) The appropriate agency may pursue a misbranding or mislabeling
action against the company producing the product;
(c) The company's name will be circulated to regional FNS offices;
(d) FNS will require the food service program involved to notify the
State agency of the labeling violation.
7. FNS is authorized to issue operational policies, procedures, and
instructions for the CN Labeling Program.
To apply for a CN label and to obtain additional information on CN
label application procedures write to: CN Labels, U.S. Department of
Agriculture, Food and Nutrition Service, Nutrition and Technical
Services Division, 3101 Park Center Drive, Alexandria, Virginia 22302.
(National School Lunch Act, secs. 9, 13, 17; 42 U.S.C. 1758, 1761, 1766;
7 CFR 210.10, 220.8, 225.21, 226.20)
[49 FR 18457, May 1, 1984; 49 FR 45109, Nov. 15, 1984; 60 FR 31222, June
13, 1995]
PART 225--SUMMER FOOD SERVICE PROGRAM--Table of Contents
Subpart A--General
Sec.
225.1 General purpose and scope.
225.2 Definitions.
225.3 Administration.
[[Page 120]]
Subpart B--State Agency Provisions
225.4 Program management and administration plan.
225.5 Payments to State agencies and use of Program funds.
225.6 State agency responsibilities.
225.7 Program monitoring and assistance.
225.8 Records and reports.
225.9 Program assistance to sponsors.
225.10 Audits and management evaluations.
225.11 Corrective action procedures.
225.12 Claims against sponsors.
225.13 Appeal procedures.
Subpart C--Sponsor and Site Provisions
225.14 Requirements for sponsor participation.
225.15 Management responsibilities of sponsors.
225.16 Meal service requirements.
Subpart D--General Administrative Provisions
225.17 Procurement standards.
225.18 Miscellaneous administrative provisions.
225.19 Regional office addresses.
225.20 Information collection/recordkeeping--OMB assigned control
numbers.
Appendix A to Part 225--Alternate Foods for Meals
Appendix B to Part 225 [Reserved]
Appendix C to Part 225--Child Nutrition (CN) Labeling Program
Authority: Secs. 9, 13 and 14, National School Lunch Act, as amended
(42 U.S.C. 1758, 1761 and 1762a).
Source: 54 FR 18208, Apr. 27, 1989, unless otherwise noted.
Subpart A--General
Sec. 225.1 General purpose and scope.
This part establishes the regulations under which the Secretary will
administer a Summer Food Service Program. Section 13 of the Act
authorizes the Secretary to assist States through grants-in-aid to
conduct nonprofit food service programs for children during the summer
months and at other approved times. The primary purpose of the Program
is to provide food service to children from needy areas during periods
when area schools are closed for vacation.
Sec. 225.2 Definitions.
Act means the National School Lunch Act, as amended.
Administrative costs means costs incurred by a sponsor related to
planning, organizing, and managing a food service under the Program, and
excluding interest costs and operating costs.
Adult means, for the purposes of the collection of social security
numbers as a condition of eligibility for Program meals, any individual
21 years of age or older.
Advance payments means financial assistance made available to a
sponsor for its operating costs and/or administrative costs prior to the
end of the month in which such costs will be incurred.
Areas in which poor economic conditions exist means:
(a) The local areas from which an open site and restricted open site
draw their attendance in which at least 50 percent of the children are
eligible for free or reduced-price school meals under the National
School Lunch Program and the School Breakfast Program, as determined:
(1) By information provided from departments of welfare and
education, zoning commissions, census tracts, and organizations
determined by the State agency to be migrant organizations;
(2) By the number of free and reduced-price lunches or breakfasts
served to children attending public and nonprofit private schools
located in the areas of Program sites; or
(3) From other appropriate sources; or
(b) A closed enrolled site.
Camps means residential summer camps and nonresidential day camps
which offer a regularly scheduled food service as part of an organized
program for enrolled children. Nonresidential camp sites shall offer a
continuous schedule of organized cultural or recreational programs for
enrolled children between meal services.
Children means (a) persons 18 years of age and under, and (b)
persons over 18 years of age who are determined by a State educational
agency or a local public educational agency of a State to be mentally or
physically handicapped and who participate in a public or nonprofit
private school program established for the mentally or physically
handicapped.
[[Page 121]]
Closed enrolled site means a site which is open only to enrolled
children, as opposed to the community at large, and in which at least 50
percent of the enrolled children at the site are eligible for free or
reduced price school meals under the National School Lunch Program and
the School Breakfast Program, as determined by approval of applications
in accordance with Sec. 225.15(f).
Continuous school calendar means a situation in which all or part of
the student body of a school is (a) on a vacation for periods of 15
continuous school days or more during the period October through April
and (b) in attendance at regularly scheduled classes during most of the
period May through September.
Costs of obtaining food means costs related to obtaining food for
consumption by children. Such costs may include, in addition to the
purchase price of agricultural commodities and other food, the cost of
processing, distributing, transporting, storing, or handling any food
purchased for, or donated to, the Program.
Current income means income, as defined in Sec. 225.15(f)(4)(vi),
received during the month prior to application for free meals. If such
income does not accurately reflect the household's annual income, income
must be based on the projected annual household income. If the prior
year's income provides an accurate reflection of the household's current
annual income, the prior year may be used as a base for the projected
annual income.
Department means the U.S. Department of Agriculture.
Documentation means:
(a) The completion of the following information on a free meal
application:
(1) Names of all household members;
(2) Income received by each household member, identified by source
of income (such as earnings, wages, welfare, pensions, support payments,
unemployment compensation, social security and other cash income);
(3) The signature of an adult household member; and
(4) The social security number of the adult household member who
signs the application, or an indication that he/she does not possess a
social security number; or
(b) For a child who is a member of a household receiving food stamp,
FDPIR, or TANF benefits, ``documentation'' means completion of only the
following information on a free meal application:
(1) The name(s) and appropriate food stamp, FDPIR, or TANF case
number(s) for the child(ren); and
(2) the signature of an adult member of the household.
Experienced site means a site which, as determined by the State
agency, has successfully participated in the Program in the prior year.
Experienced sponsor means a sponsor which, as determined by the
State agency, has successfully participated in the Program in the prior
year.
Family means a group of related or nonrelated individuals who are
not residents of an institution or boarding house but who are living as
one economic unit.
FDPIR household means any individual or group of individuals which
is currently certified to receive assistance as a household under the
Food Distribution Program on Indian Reservations.
Fiscal year means the period beginning October 1 of any calendar
year and ending September 30 of the following calendar year.
FNS means the Food and Nutrition Service of the Department.
FNSRO means the appropriate FNS Regional Office.
Food service management company means any commercial enterprise or
nonprofit organization with which a sponsor may contract for preparing
unitized meals, with or without milk, for use in the Program, or for
managing a sponsor's food service operations in accordance with the
limitations set forth in Sec. 225.15. Food service management companies
may be: (a) Public agencies or entities; (b) private, nonprofit
organizations; or (c) private, for-profit companies.
Food stamp household means any individual or group of individuals
which is currently certified to receive assistance as a household under
the Food Stamp Program.
Household means ``family,'' as defined in this section.
[[Page 122]]
Income accruing to the program means all funds used by a sponsor in
its food service program, including but not limited to all monies, other
than program payments, received from Federal, State and local
governments, from food sales to adults, and from any other source
including cash donations or grants. Income accruing to the Program will
be deducted from combined operating and administrative costs.
Income standards means the family-size and income standards
prescribed annually by the Secretary for determining eligibility for
reduced price meals under the National School Lunch Program and the
School Breakfast Program.
Meals means food which is served to children at a food service site
and which meets the nutritional requirements set out in this part.
Milk means whole milk, lowfat milk, skim milk, and buttermilk. All
milk must be fluid and pasteurized and must meet State and local
standards for the appropriate type of milk. Milk served may be flavored
or unflavored. In Alaska, Hawaii, American Samoa, Guam, Puerto Rico, the
Trust Territory of the Pacific Islands, the Northern Mariana Islands,
and the Virgin Islands of the United States, if a sufficient supply of
such types of fluid milk cannot be obtained, reconstituted or recombined
milk may be used. All milk should contain Vitamins A and D at the levels
specified by the Food and Drug Administration and at levels consistent
with State and local standards for such milk.
Needy children means children from families whose incomes are equal
to or below the Secretary's Guidelines for Determining Eligibility for
Reduced Price School Meals.
New site means a site which did not participate in the Program in
the prior year, or, as determined by the State agency, a site which has
experienced significant staff turnover from the prior year.
New sponsor means a sponsor which did not participate in the Program
in the prior year, or, as determined by the State agency, a sponsor
which has experienced significant staff turnover from the prior year.
NYSP means the National Youth Sports Program administered by the
National Collegiate Athletic Association.
NYSP feeding site means a site at which all of the children
receiving Program meals are enrolled in the NYSP and which qualifies for
Program participation on the basis of documentation that the site meets
the definition of ``areas in which poor economic conditions exist'' as
provided in this section.
OIG means the Office of the Inspector General of the Department.
Open site means a site at which meals are made available to all
children in the area and which is located in an area in which at least
50 percent of the children are from households that would be eligible
for free or reduced price school meals under the National School Lunch
Program and the School Breakfast Program, as determined in accordance
with paragraph (a) of the definition of Areas in which poor economic
conditions exist.
Operating costs means the cost of operating a food service under the
Program,
(a) Including the (1) cost of obtaining food, (2) labor directly
involved in the preparation and service of food, (3) cost of nonfood
supplies, (4) rental and use allowances for equipment and space, and (5)
cost of transporting children in rural areas to feeding sites in rural
areas, but
(b) Excluding (1) the cost of the purchase of land, acquisition or
construction of buildings, (2) alteration of existing buildings, (3)
interest costs, (4) the value of in-kind donations, and (5)
administrative costs.
Private nonprofit means tax exempt under the Internal Revenue Code
of 1986, as amended.
Private nonprofit organization means an organization (other than
private nonprofit residential camps, school food authorities, or
colleges or universities participating in the NYSP) which meets the
definition of ``private nonprofit'' in this section and which:
(a) Administers the Program:
(1) At no more than 25 sites, with not more than 300 children being
served at any approved meal service at any one site; or
[[Page 123]]
(2) With a waiver granted by the State in accordance with
Sec. 225.6(b)(ii), not more than 500 children being served at any
approved meal service at any one site;
(b) Operates in areas where a school food authority has not
indicated that it will operate the Program in the current year;
(c) Exercises full control and authority over the operation of the
Program at all sites under its sponsorship;
(d) Provides ongoing year-round activities for children or families;
(e) Demonstrates that it possesses adequate management and the
fiscal capacity to operate the Program; and
(f) Meets applicable State and local health, safety, and sanitation
standards.
Program means the Summer Food Service Program for Children
authorized by Section 13 of the Act.
Program funds means Federal financial assistance made available to
State agencies for the purpose of making Program payments.
Program payments means financial assistance in the form of start-up
payments, advance payments, or reimbursement paid to sponsors for
operating and administrative costs.
Restricted open site means a site which is initially open to broad
community participation, but at which the sponsor restricts or limits
attendance for reasons of security, safety or control. Site eligibility
for a restricted open site shall be documented in accordance with
paragraph (a) of the definition of Areas in which poor economic
conditions exist.
Rural means (a) any area in a county which is not a part of a
Metropolitan Statistical Area or (b) any ``pocket'' within a
Metropolitan Statistical Area which, at the option of the State agency
and with FNSRO concurrence, is determined to be geographically isolated
from urban areas.
School food authority means the governing body which is responsible
for the administration of one or more schools and which has the legal
authority to operate a lunch program in those schools. In addition, for
the purpose of determining the applicability of food service management
company registration and bid procedure requirements, ``school food
authority'' also means any college or university which participates in
the Program.
Secretary means the Secretary of Agriculture.
Self-preparation sponsor means a sponsor which prepares the meals
that will be served at its site(s) and does not contract with a food
service management company for unitized meals, with or without milk, or
for management services.
Session means a specified period of time during which an enrolled
group of children attend camp.
Site means a physical location at which a sponsor provides a food
service for children and at which children consume meals in a supervised
setting.
Special account means an account which a State agency may require a
vended sponsor to establish with the State agency or with a Federally
insured bank. Operating costs payable to the sponsor by the State agency
are deposited in the account and disbursement of monies from the account
must be authorized by both the sponsor and the food service management
company.
Sponsor means a public or private nonprofit school food authority, a
public or private nonprofit residential summer camp, a unit of local,
municipal, county or State government, a public or private nonprofit
college or university currently participating in the NYSP, or a private
nonprofit organization which develops a special summer or other school
vacation program providing food service similar to that made available
to children during the school year under the National School Lunch and
School Breakfast Programs and which is approved to participate in the
Program. Sponsors are referred to in the Act as ``service
institutions''.
Start-up payments means financial assistance made available to a
sponsor for administrative costs to enable it to effectively plan a
summer food service, and to establish effective management procedures
for such a service. These payments shall be deducted from subsequent
administrative cost payments.
State means any of the 50 States, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands of the United States,
Guam, American Samoa, the Trust Territory
[[Page 124]]
of the Pacific Islands, and the Northern Mariana Islands.
State agency means the State educational agency or an alternate
agency that has been designated by the Governor or other appropriate
executive or legislative authority of the State and which has been
approved by the Department to administer the Program within the State,
or, in States where FNS administers the Program, FNSRO.
TANF means the State funded program under part A of title IV of the
Social Security Act that the Secretary determines complies with
standards established by the Secretary that ensure that the standards
under the State program are comparable to or more restrictive than those
in effect on June 1, 1995. This program is commonly referred to as
Temporary Assistance for Needy Families, although States may refer to
the program by another name.
Unit of local, municipal, county or State government means an entity
which is so recognized by the State constitution or State laws, such as
the State administrative procedures act, tax laws, or other applicable
State laws which delineate authority for government responsibility in
the State.
Vended sponsor means a sponsor which purchases from a food service
management company the unitized meals, with or without milk, which it
will serve at its site(s), or a sponsor which purchases management
services, subject to the limitations set forth in Sec. 225.15, from a
food service management company.
Yogurt means commercially prepared coagulated milk products obtained
by the fermentation of specific bacteria, that meet milk fat or milk
solid requirements and to which flavoring foods or ingredients may be
added. These products are covered by the Food and Drug Administration's
Standard of Identity for yogurt, lowfat yogurt, and nonfat yogurt, (21
CFR 131.200), (21 CFR 131.203), (21 CFR 131.206), respectively.
[54 FR 18208, Apr. 27, 1989, as amended at 54 FR 27153, June 28, 1989;
55 FR 13466, Apr. 10, 1990; 61 FR 25553, May 22, 1996; 64 FR 72483, Dec.
28, 1999; 64 FR 72895, Dec. 29, 1999]
Effective Date Note 1: At 64 FR 72483, Dec. 28, 1999, Sec. 225.2 was
amended by removing the definitions of``Academic-Year NYSP'', ``AFDC
assistance unit'', and ``Homeless feeding site''; by revising the
definitions of ``Current income'', ``Documentation'', ``NYSP feeding
site'', ``Private nonprofit organization'', and ``Sponsor''; and by
adding new definitions of ``FDPIR household'' and ``TANF'', effective
January 27, 2000. For the convenience of the user, the superseded text
follows.
Sec. 225.2 Definitions.
* * * * *
Academic-Year NYSP means that portion of the NYSP operating drug
awareness and counseling programs during the months October through
April, as authorized under Public Law 100-690, the Anti-Drug Abuse Act
of 1988.
* * * * *
AFDC assistance unit means any individual or group of individuals
which is currently certified to receive assistance under the Aid to
Families with Dependent Children Program in a State where the standard
of eligibility for AFDC benefits does not exceed the income standards
for free meals under the National School Lunch Program (7 CFR part 245).
* * * * *
Current income means income, as defined in Section 225.15(f)(2)(iv),
received during the month prior to application for free meals. If such
income does not accurately reflect the household's annual income, income
shall be based on the projected annual household income. If the prior
year's income provides an accurate reflection of the household's current
annual income, the prior year may be used as a base for the projected
annual income.
* * * * *
Documentation means (a) the completion of the following information
on a free meal application:
(1) Names of all household members;
(2) Income received by each household member, identified by source
of income (such as earnings, wages, welfare, pensions, support payments,
unemployment compensation, social security and other cash income);
(3) The signature of an adult household member; and
(4) The social security number of the adult household member who
signs the application, or an indication that the he/she does not possess
a social security number; or,
(b) For a child who is a member of a food stamp household or an AFDC
assistance unit, ``documentation'' means completion of only the
following information on a free
[[Page 125]]
meal application: (1) The name(s) and appropriate food stamp or AFDC
case number(s) for the child(ren); and (2) the signature of an adult
member of the household.
* * * * *
Homeless feeding site means a feeding site whose primary purpose is
to provide shelter and one or more regularly scheduled meal services per
day to homeless families and which is not a residential child care
institution as defined in paragraph (c), definition of `school',
Sec. 210.2 of the National School Lunch Program regulations.
* * * * *
NYSP feeding site means a site which qualifies for Program
participation on the basis of free meal applications taken from enrolled
children and at which all of the children receiving Program meals are
enrolled in the NYSP.
* * * * *
Private nonprofit organization means an organization (other than
private nonprofit residential camps, school food authorities, or
colleges or universities participating in the NYSP) which meets the
definition of ``private nonprofit'' in this section and which:
(a) Serves a total of not more than 2,500 children per day;
(b) Administers the Program at no more than five sites in any urban
area or 20 sites in any rural area, with not more than 300 children
being served at any approved meal service at any one site (or, with a
waiver granted by the State in accordance with Sec. 225.6(b)(6)(iii) of
this part, not more than 500 children being served at any approved meal
service at any one site);
(c) Either uses self-preparation facilities to prepare meals or
obtains meals from a public facility (such as a school district, public
hospital, or State university) or a school participating in the National
School Lunch Program;
(d) Operates in areas where a school food authority or the local,
municipal, or county government has not indicated by March 1 of the
current year that such authority or unit of government will operate the
Program in the current year (except that, if a school food authority or
local, municipal, or county government has served that area in the prior
year's Program, the private nonprofit organization may only sponsor the
Program in that area if it receives a waiver from the State agency in
accordance with Sec. 225.6(a)(3)(iv)(B));
(e) Exercises full control and authority over the operation of the
Program at all sites under its sponsorship;
(f) Provides ongoing year-round activities for children or families;
(g) Demonstrates that it possesses adequate management and the
fiscal capacity to operate the Program; and
(h) Meets applicable State and local health, safety, and sanitation
standards.
* * * * *
Sponsor means a public or private nonprofit school food authority, a
public or private nonprofit residential summer camp, a unit of local,
municipal, county or State government, a public or private nonprofit
college or university currently participating in the NYSP, or a private
nonprofit organization which develops a special summer or other school
vacation program providing food service similar to that made available
to children during the school year under the National School Lunch and
School Breakfast Programs and which is approved to participate in the
Program. In addition, ``sponsor'' may also mean a public or private
nonprofit college or university which participates in the NYSP during
the months of October through April and is approved to participate in
the Program. Sponsors are referred to in the Act as ``service
institutions''.
* * * * *
Effective Date Note 2: At 64 FR 72895, Dec. 29, 1999, Sec. 225.2 was
amended by revising the definition of ``Areas in which poor economic
conditions exist'' and by adding definitions of ``Closed enrolled
site'', ``Experienced site'', ``Experienced sponsor'', ``New site'',
``New sponsor'', ``Open site'', and ``Restricted open site'', effective
Jan. 28, 2000. For the convenience of the user, the superseded text
follows.
Sec. 225.2 Definitions.
* * * * *
Areas in which poor economic conditions exist means (a) the local
areas from which a site draws its attendance in which at least 50
percent of the children are eligible for free or reduced price school
meals under the National School Lunch Program and the School Breakfast
Program, as determined (1) by information provided from departments of
welfare, education, zoning commissions, census tracts, and organizations
determined by the State agency to be migrant organizations, (2) by the
number of free and reduced price lunches or breakfasts served to
children attending public and nonprofit private schools located in the
areas of Program sites, or (3) from other appropriate sources, or
(b) An enrollment program in which at least 50 percent of the
enrolled children at
[[Page 126]]
the site are eligible for free or reduced price school meals as
determined by approval of applications in accordance with Sec. 225.15(f)
of this part.
* * * * *
Sec. 225.3 Administration.
(a) Responsibility within the Department. FNS shall act on behalf of
the Department in the administration of the Program.
(b) State administered programs. Within the State, responsibility
for the administration of the Program shall be in the State agency. Each
State agency must notify the Department by November 1 of the fiscal year
regarding its intention to administer the Program. Each State agency
desiring to take part in the Program shall enter into a written
agreement with FNS for the administration of the Program in accordance
with the provisions of this part. The agreement shall cover the
operation of the Program during the period specified therein and may be
extended by written consent of both parties. The agreement shall contain
an assurance that the State agency will comply with the Department's
nondiscrimination regulations (7 CFR part 15) issued under title VI of
the Civil Rights Act of 1964, and any Instructions issued by FNS
pursuant to those regulations, title IX of the Education Amendments of
1972, and section 504 of the Rehabilitation Act of 1973. However, if a
State educational agency is not permitted by law to disburse funds to
any of the nonpublic schools in the State, the Secretary shall disburse
the funds directly to such schools within the State for the same
purposes and subject to the same conditions as the disbursements to
public schools within the State by the State educational agency.
(c) Regional office administered programs. The Secretary shall not
administer the Program in the States, except that if a FNSRO has
continuously administered the Program in any State since October 1,
1980, FNS shall continue to administer the Program in that State. In
States in which FNSRO administers the Program, it shall have all of the
responsibilities of a State agency and shall earn State administrative
and Program funds as set forth in this part. A State in which FNS
administers the Program may, upon request to FNS, assume administration
of the Program.
[54 FR 18208, Apr. 27, 1989, as amended at 55 FR 13466, Apr. 10, 1990;
64 FR 72483, Dec. 28, 1999]
Effective Date Note: At 64 FR 72483, Dec. 28, 1999, Sec. 225.3 was
amended by revising the second sentence and by removing the third
sentence of paragraph (b), effective Jan. 27, 2000. For the convenience
of the user, the superseded text follows.
Sec. 225.3 Administration.
* * * * *
(b) * * * With the exception of State agencies having academic-year
NYSP sponsors, each State agency shall notify the Department by November
1 of the fiscal year regarding its intention to administer the Program.
Those State agencies whose Program will include academic-year NYSP
sponsors shall enter into an agreement with FNS by October 1 which shall
cover the entire fiscal year and shall administer the Program for all
eligible sponsors within the State during the agreement period. * * *
* * * * *
Subpart B--State Agency Provisions
Sec. 225.4 Program management and administration plan.
(a) Not later than February 15 of each year, each State agency shall
submit to FNSRO a Program management and administration plan for that
fiscal year.
(b) Each plan shall be acted on or approved by March 15 or, if it is
submitted late, within 30 calendar days of receipt of the plan. If the
plan initially submitted is not approved, the State agency and FNS shall
work together to ensure that changes to the plan, in the form of
amendments, are submitted so that the plan can be approved within 60
calendar days following the initial submission of the plan. Upon
approval of the plan, the State agency shall be notified of the level of
State administrative funding which it is assured of receiving under
Sec. 225.5(a)(3).
(c) Approval of the Plan by FNS shall be a prerequisite to the
withdrawal of
[[Page 127]]
Program funds by the State from the Letter of Credit and to the donation
by the Department of any commodities for use in the State's Program.
(d) The Plan must include, at a minimum, the following information:
(1) The State's administrative budget for the fiscal year, and the
State's plan to comply with any standards prescribed by the Secretary
for the use of these funds;
(2) The State's plan for use of Program funds and funds from within
the State to the maximum extent practicable to reach needy children;
(3) The State's plans for providing technical assistance and
training to eligible sponsors;
(4) The State's plans for monitoring and inspecting sponsors,
feeding sites, and food service management companies and for ensuring
that such companies do not enter into contracts for more meals than they
can provide effectively and efficiently;
(5) The State's plan for timely and effective action against Program
violators;
(6) The State's plan for ensuring the fiscal integrity of sponsors
not subject to auditing requirements prescribed by the Secretary;
(7) The State's plan for ensuring compliance with the food service
managment company procurement monitoring requirements set forth at
Sec. 225.6(h); and
(8) An estimate of the State's need, if any, for monies available to
pay for the cost of conducting health inspections and meal quality
tests.
[54 FR 18208, Apr. 27, 1989, as amended at 55 FR 13466, Apr. 10, 1990;
64 FR 72483, Dec. 28, 1999]
Effective Date Note: At 64 FR 72483, Dec. 28, 1999, Sec. 225.4 was
amended by revising paragraph (d), effective Jan. 27, 2000. For the
convenience of the user, the superseded text follows.
Sec. 225.4 Program management and administration plan.
* * * * *
(d) The Plan shall include, at a minimum, the following information:
(1) The State's administrative budget for the fiscal year, and the
State's plan to comply with any standards prescribed by the Secretary
for the use of these funds;
(2) The State's plans for use of Program funds and funds from within
the State to the maximum extent practicable to reach needy children,
including the State's methods for assessing need, its plans and schedule
for informing sponsors of the availability of the Program, and,
beginning in Fiscal Year 1991, its plans for making efforts to inform
private nonprofit organizations of their potential eligibility for
Program sponsorship;
(3) The State's best estimate of the number and character of
sponsors and sites to be approved, the number of means to be served, the
number of children who will participate, and a description of the
estimating methods used by the State. Estimates of participation by
private nonprofit organizations and their potential impact on the number
of children and meals served need not be included in the plan until
Fiscal Year 1991;
(4) The State's schedule for application by sponsors;
(5) The actions to be taken to maximize the use of meals prepared by
sponsors and to maximize the use of school food service facilities;
(6) The State's plans and schedule for providing technical
assistance and training to eligible sponsors;
(7) The State's plans for monitoring and inspecting sponsors,
feeding sites, and food service management companies and for ensuring
that such companies do not enter into contracts for more meals than they
can provide effectively and efficiently;
(8) The State's plan and schedule for registering food service
management companies;
(9) The State's plan for timely and effective action against Program
violators;
(10) The State's plan for determining the amounts of Program
payments to sponsors and for disbursing such payments;
(11) The State's plan for ensuring the fiscal integrity of sponsors
not subject to auditing requirements prescribed by the Secretary;
(12) The State's procedure for granting a hearing and prompt
determination to any sponsors wishing to appeal a State ruling, as
specified in Sec. 225.13;
(13) Beginning January 1, 1990, the State's plan for ensuring
compliance with the food service management company procurement
monitoring requirements set forth at Sec. 225.6(h); and
(14) Beginning January 1, 1990, an estimate of the State's need, if
any, for monies available to pay for the cost of conducting health
inspections and meal quality tests.
* * * * *
Sec. 225.5 Payments to State agencies and use of Program funds.
(a) State administrative funds. (1) Administrative funding formula.
For each
[[Page 128]]
fiscal year, FNS shall pay to each State agency for administrative
expenses incurred in the Program an amount equal to
(i) 20 percent of the first $50,000 in Program funds properly
payable to the State in the preceding fiscal year;
(ii) 10 percent of the next $100,000 in Program funds properly
payable to the State in the preceding fiscal year;
(iii) 5 percent of the next $250,000 in Program funds properly
payable to the State in the preceding fiscal year; and
(iv) 2\1/2\ percent of any remaining Program funds properly payable
to the State in the preceding fiscal year,
Provided, however, That FNS may make appropriate adjustments in the
level of State administrative funds to reflect changes in Program size
from the preceding fiscal year as evidenced by information submitted in
the State Program management and administration plan and any other
information available to FNS. If a State agency fails to submit timely
and accurate reports under Sec. 225.8(c) of this part, State
administrative funds payable under this paragraph shall be subject to
sanction. For such failure, FNS may recover, withhold, or cancel payment
of up to one hundred percent of the funds payable to the State agency
under this paragraph during the fiscal year.
(2) Use of State administrative funds. State administrative funds
paid to any State shall be used by State agencies to employ personnel,
including travel and related expenses, and to supervise and give
technical assistance to sponsors in their initiation, expansion, and
conduct of any food service for which Program funds are made available.
State agencies may also use administrative funds for such other
administrative expenses as are set forth in their approved Program
management and administration plan.
(3) Funding assurance. At the time FNS approves the State's
management and administration plan, the State shall be assured of
receiving State administrative funding equal to the lesser of the
following amounts: 80 percent of the amount obtained by applying the
formula set forth in paragraph (a)(1) of this section to the total
amount of Program payments made within the State during the prior fiscal
year; or, 80 percent of the amount obtained by applying the formula set
forth in paragraph (a)(1) to the amount of Program funds estimated to be
needed in the management and administration plan. The State agency shall
be assured that it will receive no less than this level unless FNS
determines that the State agency has failed or is failing to meet its
responsibilities under this part.
(4) Limitation. In no event may the total payment for State
administrative costs in any fiscal year exceed the total amount of
expenditures incurred by the State agency in administering the Program.
(b) State administrative funds Letter of Credit. (1) At the
beginning of each fiscal year, FNS shall make available to each
participating State agency by Letter of Credit an initial allocation of
State administrative funds for use in that fiscal year. This allocation
shall not exceed one-third of the administrative funds provided to the
State in the preceding fiscal year. For State agencies which did not
receive any Program funds during the preceding fiscal year, the amount
to be made available shall be determined by FNS.
(2) Additional State administrative funds shall be made available
upon the receipt and approval by FNS of the State's Program management
and administration plan. The amount of such funds, plus the initial
allocation, shall not exceed 80 percent of the State administrative
funds determined by the formula set forth in paragraph (a)(1) of this
section and based on the estimates set forth in the approved Program
management and administration plan.
(3) Any remaining State administrative funds shall be paid to each
State agency as soon as practicable after the conduct of the funding
assessment described in paragraph (c) of this section. However,
regardless of whether such assessment is made, the remaining
administrative funds shall be paid no later than September 1. The
remaining administrative payment shall be in an amount equal to that
determined to be needed during the funding evaluation or, if such
evaluation is not conducted, the amount owed the State in accordance
with paragraph (a)(1) of this section, less the amounts paid under
paragraphs (b) (1) and (2) of this section.
[[Page 129]]
(c) Administrative funding evaluation. FNSRO shall conduct data on
the need for Program and State administrative funding within any State
agency if the funding needs estimated in a State's management and
administration plan are no longer accurate. Based on this data, FNS may
make adjustments in the level of State administrative funding paid or
payable to the State agency under paragraph (b) of this section to
reflect changes in the size of the State's Program as compared to that
estimated in its management and administration plan. The data shall be
based on approved Program participation levels and shall be collected
during the period of Program operations. As soon as possible following
this data collection, payment of any additional administrative funds
owed shall be made to the State agency. The payment may reflect
adjustments made to the level of State administrative funding based on
the information collected during the funding assessment. However, FNS
shall not decrease the amount of a State's administrative funds as a
result of this assessment unless the State failed to make reasonable
efforts to administer the Program as proposed in its management and
administration plan or the State incurred unnecessary expenses.
(d) Letter of Credit for Program payments. (1) Not later than April
15 of each fiscal year, FNS shall make available to each participating
State in a Letter of Credit an amount equal to 65 percent of the
preceding fiscal year's Program payments for operating costs plus 65
percent of the preceding fiscal year's Program payments for
administrative costs in the State. This amount may be adjusted to
reflect changes in reimbursement rates made pursuant to
Sec. 225.9(d)(8). However, the State shall not withdraw funds from this
Letter of Credit until its Program management and administration plan is
approved by FNS.
(2) Based on the State agency's approved management and
administration plan, FNS shall, if necessary, adjust the State's Letter
of Credit to ensure that 65 percent of estimated current year Program
operating and administrative funding needs is available. Such adjustment
shall be made no later than May 15, or within 90 days of FNS receipt of
the State agency's management and administration plan, whichever date is
later.
(3) Subsequent to the adjustment provided for in paragraph (d)(2) of
this section, FNS will, if necessary, make one additional adjustment to
ensure that the State agency's Letter of Credit contains at least 65
percent of the Program operating and administrative funds needed during
the current fiscal year. Such adjustment may be based on the
administrative funding assessment provided for in paragraph (c) of this
section, if one is conducted, or on any additional information which
demonstrates that the funds available in the Letter of Credit do not
equal at least 65 percent of current year Program needs. In no case will
such adjustments be made later than September 1. Funds made available in
the Letter of Credit shall be used by the State agency to make Program
payments to sponsors.
(4) The Letter of Credit shall include sufficient funds to enable
the State agency to make advance payments to sponsors serving areas in
which schools operate under a continuous school calendar. These funds
shall be made available no later than the first day of the month prior
to the month during which the food service will be conducted.
(5) FNS shall make available any remaining Program funds due within
45 days of the receipt of valid claims for reimbursement from sponsors
by the State agency. However, no payment shall be made for claims
submitted later than 60 days after the month covered by the claim unless
an exception is granted by FNS.
(6) Each State agency shall release to FNS any Program funds which
it determines are unobligated as of September 30 of each fiscal year.
Release of funds by the State agency shall be made as soon as
practicable, but in no event later than 30 calendar days following
demand by FNS, and shall be accomplished by an adjustment in the State
agency's Letter of Credit.
(e) Adjustment to Letter of Credit. Prior to May 15 of each fiscal
year, FNS shall make any adjustments necessary in each State's Letter of
Credit to reflect
[[Page 130]]
actual expenditures in the preceding fiscal year's Program.
(f) Health inspection funds. If the State agency's approved
management and administration plan estimates a need for health
inspection funding, FNS shall make available by letter of credit an
amount up to one percent of Program funds estimated to be needed in the
management and administration plan. Such amount may be adjusted, based
on the administrative funding assessment provided for in paragraph (c)
of this section, if such assessment is conducted. Health inspection
funds shall be used solely to enable State or local health departments
or other governmental agencies charged with health inspection functions
to carry out health inspections and meal quality tests, provided that if
these agencies cannot perform such inspections or tests, the State
agency may use the funds to contract with an independent agency to
conduct the inspection or meal quality tests. Funds so provided but not
expended or obligated shall be returned to the Department by September
30 of the same fiscal year.
Sec. 225.6 State agency responsibilities.
(a) General responsibilities. (1) The State agency shall provide
sufficient qualified consultative, technical, and managerial personnel
to administer the Program, monitor performance, and measure progress in
achieving Program goals. The State agency shall assign Program
responsibilities to personnel to ensure that all applicable requirements
under this part are met.
(2) By February 1 of each fiscal year, each State agency shall
announce the purpose, eligibility criteria, and availability of the
Program throughout the State, through appropriate means of
communication. As part of this effort, each State agency shall identify
rural areas, Indian tribal territories, and areas with a concentration
of migrant farm workers which qualify for the Program and actively seek
eligible applicant sponsors to serve such areas. State agencies shall
identify priority outreach areas in accordance with FNS guidance and
target outreach efforts in these areas. State agencies shall identify
priority outreach areas in accordance with FNS guidance and target
outreach efforts in these areas.
(3) Each State agency shall require applicant sponsors submitting
Program application site information sheets, Program agreements, or a
request for advance payments, and sponsors submitting claims for
reimbursement to certify that the information submitted on these forms
is true and correct and that the sponsor is aware that deliberate
misrepresentation or withholding of information may result in
prosecution under applicable State and Federal statutes.
(4) In addition to the warnings specified in paragraph (a)(3) of
this section, State agencies may include the following information on
applications and pre-application materials distributed to prospective
sponsors:
(i) The criminal penalties and provisions established in section
12(g) of the National School Lunch Act (42 U.S.C. 1760(g)) that states
substantially: Whoever embezzles, willfully misapplies, steals, or
obtains by fraud any funds, assets, or property that are the subject of
a grant or other form of assistance under this Act or the Child
Nutrition Act of 1966 (42 U.S.C. 1771 et seq.), whether received
directly or indirectly from the United States Department of Agriculture,
or whoever receives, conceals, or retains such funds, assets, or
property to personal use or gain, knowing such funds, assets, or
property have been embezzled, willfully misapplied, stolen, or obtained
by fraud shall, if such funds, assets, or property are of the value of
$100 or more, be fined not more than $25,000 or imprisoned not more than
five years, or both, or, if such funds, assets, or property are of a
value of less than $100, shall be fined not more than $1,000 or
imprisoned for not more than one year, or both.
(ii) The procedures for termination from Program participation of
any site or sponsor which is determined to be seriously deficient in its
administration of the Program. In addition, the application may also
state that appeals of sponsor or site terminations will follow
procedures mandated by the State agency and will also meet the minimum
requirements of 7 CFR 225.13.
(b) Approval of sponsor applications. (1) Each State agency must
inform all of
[[Page 131]]
the previous year's sponsors which meet current eligibility requirements
and all other potential sponsors of the deadline date for submitting a
written application for participation in the Program. The State agency
must require that all applicant sponsors submit written applications for
Program participation to the State agency by June 15. However, the State
agency may establish an earlier deadline for the Program application
submission.
(2) Each State agency shall inform potential sponsors of the
procedure for applying for advance operating and administrative costs
payments as provided for in Sec. 225.9(c). Where applicable, each State
agency shall inform sponsors of the procedure for applying for start-up
payments provided for in Sec. 225.9(a).
(3) Within 30 days of receiving a complete and correct application,
the State agency shall notify the applicant of its approval or
disapproval. If an incomplete application is received, the State agency
shall so notify the applicant within 15 days and shall provide technical
assistance for the purpose of completing the application. Any
disapproved applicant shall be notified of its right to appeal under
Sec. 225.13.
(4) The State agency shall determine the eligibility of sponsors
applying for participation in the Program in accordance with the
applicant sponsor eligibility criteria outlined in Sec. 225.14. However,
State agencies may approve the application of an otherwise eligible
applicant sponsor which does not provide a year-round service to the
community which it proposes to serve under the Program only if it meets
one or more of the following criteria: It is a residential camp; it
proposes to provide a food service for the children of migrant workers;
a failure to do so would deny the Program to an area in which poor
economic conditions exist; a significant number of needy children will
not otherwise have reasonable access to the Program; or it proposes to
serve an area affected by an unanticipated school closure during the
period from October through April (or at any time of the year in an area
with a continuous school calendar). In addition, the State agency may
approve a sponsor for participation during an unanticipated school
closure without a prior application if the sponsor participated in the
program at any time during the current year or in either of the prior
two calendar years.
(5) The State agency must use the following priority system in
approving applicants to operate sites that propose to serve the same
area or the same enrolled children:
(i) Public or nonprofit private school food authorities;
(ii) Public agencies and private nonprofit organizations that have
demonstrated successful program performance in a prior year;
(iii) New public agencies; and
(iv) New private nonprofit organizations.
(v) If two or more sponsors that qualify under paragraph (b)(5)(ii)
of this section apply to serve the same area, the State agency must
determine on a case-by-case basis which sponsor or sponsors it will
select to serve the needy children in the area. The State agency should
consider the resources and capabilities of each applicant.
(6) The following limitations apply on the number of sites and
children that may be served per day:
(i) The State agency must not approve any school food authority or
public agency to operate more than 200 sites or to serve more than an
average of 50,000 children per day. However, the State agency may
approve exceptions if the applicant can demonstrate that it has the
capability of managing a program larger than these limits.
(ii) The State agency must not approve any private nonprofit
organization to operate more than 25 sites. In addition, the State
agency must not approve any private nonprofit organization to serve more
than 300 children at any one site for any approved meal service.
However, the State agency may grant a waiver to allow up to 500 children
served at any one site operated by a private nonprofit organization. To
be approved for the waiver, the private nonprofit organization must
demonstrate that it is fully capable of managing a site with more than
300 children and that there are no other sponsors capable of serving the
children in excess of 300.
[[Page 132]]
(7) The State agency shall review each applicant's administrative
budget as a part of the application approval process in order to assess
the applicant's ability to operate in compliance with these regulations
within its projected reimbursement. In approving the applicant's
administrative budget, the State agency shall take into consideration
the number of sites and children to be served, as well as any other
relevant factors. A sponsor's administrative budget shall be subject to
review for adjustments by the State agency if the sponsor's level of
site participation or the number of meals served to children changes
significantly.
(8) Applicants which qualify as camps shall be approved for
reimbursement only for meals served free to enrolled children who meet
the Program's eligibility standards.
(9) The State agency shall not approve the application of any
applicant sponsor identifiable through its organization or principals as
a sponsor which has been determined to be seriously deficient as
described in Sec. 225.11(c). However, the State agency may approve the
application of a sponsor which has been disapproved or terminated in
prior years in accordance with this paragraph if the applicant
demonstrates to the satisfaction of the State agency that it has taken
appropriate corrective actions to prevent recurrence of the
deficiencies.
(10) If the sponsor's application to participate is denied, the
official making the determination of denial must notify the applicant
sponsor in writing stating all of the grounds on which the State agency
based the denial. Pending the outcome of a review of a denial, the State
agency shall proceed to approve other applicants in accordance with its
responsibilities under paragraph (b)(5) of this section, without regard
to the application under review.
(11) The State agency shall not approve the application of any
applicant sponsor which submits fraudulent information or documentation
when applying for Program participation or which knowingly withholds
information that may lead to the disapproval of its application.
Complete information regarding such disapproval of an applicant shall be
submitted by the State agency through FNSRO to OIG.
(c) Content of sponsor application.
(1) Application forms. The applicant shall submit a written
application to the State agency for participation in the Program as a
sponsor. Sponsors proposing to serve an area affected by an
unanticipated school closure during the period from October through
April (or at any time of the year in an area with a continuous school
calendar) may be exempt, at the discretion of the State agency, from
submitting a new application if they have participated in the program at
any time during the current year or in either of the prior two calendar
years. The State agency may use the application form developed by FNS,
or it may develop an application form, for use in the Program.
Application shall be made on a timely basis in accordance with the
deadline date established under Sec. 225.6(b)(1).
(2) Requirements for new sponsors, new sites, and, as determined by
the State agency, sponsors and sites which have experienced significant
operational problems in the prior year.--(i) Site information sheets. At
a minimum, the application submitted by new sponsors and by sponsors
which, in the determination of the State agency, have experienced
significant operational problems in the prior year shall include a site
information sheet, as developed by the State agency, for each site where
a food service operation is proposed. The site information sheet for new
sponsors and new sites, and for sponsors and sites which, in the
determination of the State agency, have experienced significant
operational problems in the current year must demonstrate or describe
the following:
(A) An organized and supervised system for serving meals to
attending children;
(B) The estimated number and types of meals to be served and the
times of service;
(C) Arrangements, within standards prescribed by the State or local
health authorities, for delivery and holding of meals until time of
service, and arrangements for storing and refrigerating any leftover
meals until the next day;
[[Page 133]]
(D) Arrangements for food service during periods of inclement
weather;
(E) Access to a means of communication for making necessary
adjustments in the number of meals delivered in accordance with the
number of children attending daily at each site;
(F) Whether the site is rural, as defined in Sec. 225.2, or non-
rural, and whether the site's food service will be self-prepared or
vended;
(G) For open sites and restricted open sites, documentation
supporting the eligibility of each site as serving an area in which poor
economic conditions exist. However, for sites that a sponsor proposes to
serve during an unanticipated school closure during the period from
October through April (or at any time of the year in an area with a
continuous school calendar), any site which has participated in the
Program at any time during the current year or in either of the prior
two calendar years shall be considered eligible without new
documentation;
(H) For closed enrolled sites, the projected number of children
enrolled and the projected number of children eligible for free and
reduced price meals for each of these sites;
(I) For NYSP sites, certification from the sponsor that all of the
children who will receive Program meals are enrolled participants in the
NYSP;
(J) For camps, the number of children enrolled in each session who
meet the Program's income standards. If such information is not
available at the time of application, it shall be submitted as soon as
possible thereafter and in no case later than the filing of the camp's
claim for reimbursement for each session;
(K) For those sites at which applicants will serve children of
migrant workers, certification from a migrant organization which attests
that the site serves children of migrant worker families. If the site
also serves non-migrant children, the sponsor shall certify that the
site predominantly serves migrant children; and
(L) For a site that serves homeless children, information sufficient
to demonstrate that the site is not a residential child care
institution, as defined in paragraph (c) of the definition of school in
Sec. 210.2 of this chapter. If cash payments, food stamps, or any in-
kind service are required of any meal recipient at these sites, sponsors
must describe the method(s) used to ensure that no such payments or
services are received for any Program meal served to children. In
addition, sponsors must certify that such sites employ meal counting
methods which ensure that reimbursement is claimed only for meals served
to children.
(ii) Other application requirements. New sponsors and sponsors which
in the determination of the State agency have experienced significant
operational problems in the prior year shall also include in their
applications:
(A) Information in sufficient detail to enable the State agency to
determine whether the applicant meets the criteria for participation in
the Program as set forth in Sec. 225.14; the extent of Program payments
needed, including a request for advance payments and start-up payments,
if applicable; and a staffing and monitoring plan;
(B) A complete administrative and operating budget for State agency
review and approval. The administrative budget shall contain the
projected administrative expenses which a sponsor expects to incur
during the operation of the Program, and shall include information in
sufficient detail to enable the State agency to assess the sponsor's
ability to operate the Program within its estimated reimbursement. A
sponsor's approved administrative budget shall be subject to subsequent
review by the State agency for adjustments in projected administrative
costs;
(C) A summary of how meals will be obtained (e.g., self-prepared at
each site, self-prepared and distributed from a central kitchen,
purchased from a school food authority, competitively procured from a
food service management company, etc.). If an invitation for bid is
required under Sec. 225.15(g), sponsors shall also submit a schedule for
bid dates, and a copy of their invitation for bid; and
(D) For each applicant which seeks approval under Sec. 225.14(b)(3)
as a unit of local, municipal, county or State government, or under
Sec. 225.14(b)(5) as a private nonprofit organization, certification
that it will directly operate the
[[Page 134]]
Program in accordance with Sec. 225.14(d)(3).
(3) Requirements for experienced sponsors and experienced sites.--
(i) Site information sheets. At a minimum, the application submitted by
experienced sponsors shall include a site information sheet, as
developed by the State agency, for each site where a food service
operation is proposed. The site information sheet for experienced
sponsors and experienced sites must demonstrate or describe the
information below. The State agency also may require experienced
sponsors and experienced sites to provide any of the information
required in paragraph (c)(2) of this section.
(A) The estimated number and types of meals to be served and the
times of service;
(B) For open sites and restricted open sites, new documentation
supporting the eligibility of each site as serving an area in which poor
economic conditions exist shall be submitted. Such documentation shall
be submitted every three years when school data are used. When census
data are used, such documentation shall be submitted when new census
data are available, or earlier if the State agency believes that an
area's socioeconomic status has changed significantly since the last
census. For sites that a sponsor proposes to serve during an
unanticipated school closure during the period from October through
April (or at any time of the year in an area with a continuous school
calendar), any site which has participated in the Program at any time
during the current year or in either of the prior two calendar years
shall be considered eligible without new documentation of serving an
area in which poor economic conditions exist;
(C) For closed enrolled sites, the projected number of children
enrolled and the projected number of children eligible for free and
reduced price school meals for each of these sites; and
(D) For camps, the number of children enrolled in each session who
meet the Program's income standards. If such information is not
available at the time of application, it shall be submitted as soon as
possible thereafter and in no case later than the filing of the camp's
claim for reimbursement for each session.
(ii) Other application requirements. Experienced sponsors shall also
include on their applications:
(A) The extent of Program payments needed, including a request for
advance payments and start-up payments, if applicable, and a staffing
and monitoring plan;
(B) A complete administrative and operating budget for State agency
review and approval. The administrative budget shall contain the
projected administrative expenses which a sponsor expects to incur
during the operation of the Program, and shall include information in
sufficient detail to enable the State agency to assess the sponsor's
ability to operate the Program within its estimated reimbursement. A
sponsor's approved administrative budget shall be subject to subsequent
review by the State agency for adjustments in projected administrative
costs; and
(C) If an invitation for bid is required under Sec. 225.15(g), a
schedule for bid dates. Sponsors shall also submit a copy of the
invitation for bid if it is changed from the previous year. If the
method of procuring meals is changed, sponsors shall submit a summary of
how meals will be obtained (e.g., self-prepared at each site, self-
prepared and distributed from a central kitchen, purchased from a school
food authority, competitively procured from a food service management
company, etc.).
(4) Free meal policy statement. (i) Each applicant shall submit a
statement of its policy for serving free meals at all sites under its
jurisdiction. The policy statement shall consist of an assurance to the
State agency that all children are served the same meals at no separate
charge and that there is no discrimination in the course of the food
service.
(ii) In addition, the policy statement for camps that charge
separately for meals shall include the following:
(A) A statement that the eligibility standards conform to the
Secretary's family size and income standards for reduced price school
meals;
(B) A description of the method or methods to be used in accepting
applications from families for Program
[[Page 135]]
meals. Such methods shall ensure that households are permitted to apply
on behalf of children who are members of food stamp households or AFDC
assistance units using the categorical eligibility procedures described
in Sec. 225.15(f);
(C) A description of the method used by camps for collecting
payments from children who pay the full price of the meal while
preventing the overt identification of children receiving a free meal;
(D) An assurance that the camp will establish a hearing procedure
for families wishing to appeal a denial of an application for free
meals. Such hearing procedures shall meet the requirements set forth in
paragraph (c)(5) of this section;
(E) An assurance that, if a family requests a hearing, the child
shall continue to receive free meals until a decision is rendered; and
(F) An assurance that there will be no overt identification of free
meal recipients and no discrimination against any child on the basis of
race, color, national origin, sex, age, or handicap.
(5) Hearing procedures statement.Each applicant that is a camp shall
submit with its application a copy of its hearing procedures. At a
minimum, these procedures shall provide:
(i) That a simple, publicly announced method will be used for a
family to make an oral or written request for a hearing;
(ii) That the family will have the opportunity to be assisted or
represented by an attorney or other person;
(iii) That the family will have an opportunity to examine the
documents and records supporting the decision being appealed both before
and during the hearing;
(iv) That the hearing will be reasonably prompt and convenient for
the family;
(v) That adequate notice will be given to the family of the time and
place of the hearing;
(vi) That the family will have an opportunity to present oral or
documentary evidence and arguments supporting its position;
(vii) That the family will have an opportunity to question or refute
any testimony or other evidence and to confront and cross-examine any
adverse witnesses;
(viii) That the hearing shall be conducted and the decision made by
a hearing official who did not participate in the action being appealed;
(ix) That the decision shall be based on the oral and documentary
evidence presented at the hearing and made a part of the record;
(x) That the family and any designated representative shall be
notified in writing of the decision;
(xi) That a written record shall be prepared for each hearing which
includes the action being appealed, any documentary evidence and a
summary of oral testimony presented at the hearing, the decision and the
reasons for the decision, and a copy of the notice sent to the family;
and
(xii) That the written record shall be maintained for a period of
three years following the conclusion of the hearing, during which it
shall be available for examination by the family or its representatives
at any reasonable time and place.
(d) Approval of sites. (1) When evaluating a proposed food service
site, the State agency shall ensure that:
(i) If not a camp, the proposed site serves an area in which poor
economic conditions exist, as defined by Sec. 225.2;
(ii) The area which the site proposes to serve is not or will not be
served in whole or in part by another site, unless it can be
demonstrated to the satisfaction of the State agency that each site will
serve children not served by any other site in the same area for the
same meal;
(iii) The site is approved to serve no more than the number of
children for which its facilities are adequate and;
(iv) If it is a site proposed to operate during an unanticipated
school closure, it is a non-school site.
(2) When approving the application of a site which will serve meals
prepared by a food service management company, the State agency shall
establish for each meal service an approved level for the maximum number
of children's meals which may be served under the Program. These
approved levels shall be established in accordance with the following
provisions:
[[Page 136]]
(i) The initial maximum approved level shall be based upon the
historical record of attendance at the site if such a record has been
established in prior years and the State agency determines that it is
accurate. The State agency shall develop a procedure for establishing
initial maximum approved levels for sites when no accurate record from
prior years is available.
(ii) The maximum approved level shall be adjusted, if warranted,
based upon information collected during site reviews. If attendance at
the site on the day of the review is significantly below the site's
approved level, the State agency should consider making a downward
adjustment in the approved level with the objective of providing only
one meal per child.
(iii) The sponsor may seek an upward adjustment in the approved
level for its sites by requesting a site review or by providing the
State agency with evidence that attendance exceeds the sites' approved
levels.
(iv) Whenever the State agency establishes or adjusts approved
levels of meal service for a site, it shall document the action in its
files, and it shall provide the sponsor with immediate written
confirmation of the approved level.
(v) Upon approval of its application or any adjustment to its
maximum approved levels, the sponsor shall inform the food service
management company with which it contracts of the approved level for
each meal service at each site served by the food service management
company. This notification of any adjustments in approved levels shall
take place within the time frames set forth in the contract for
adjusting meal orders. Whenever the sponsor notifies the food service
management company of the approved levels or any adjustments to these
levels for any of its sites, the sponsor shall clearly inform the food
service management company that an approved level of meal service
represents the maximum number of meals which may be served at a site and
is not a standing order for a specific number of meals at that site.
When the number of children attending is below the site's approved
level, the sponsor shall adjust meal orders with the objective of
serving only one meal per child as required under Sec. 225.15(b)(3).
(e) State-Sponsor Agreement. A sponsor approved for participation in
the Program must enter into a written agreement with the State agency.
If the sponsor is a school food authority that operates more than one
child nutrition program (e.g., the National School Lunch Program, the
School Breakfast Program, or the Child and Adult Care Food Program)
under a single State agency, a single permanent agreement that includes
all the child nutrition programs must be executed with the State agency,
as described in Sec. 210.9(b) of this chapter. All sponsors must agree
in writing to:
(1) Operate a nonprofit food service during the period specified, as
follows:
(i) From May through September for children on school vacation;
(ii) At any time of the year, in the case of sponsors administering
the Program under a continuous school calendar system; or
(iii) During the period from October through April, if it serves an
area affected by an unanticipated school closure due to a natural
disaster, major building repairs, court orders relating to school safety
or other issues, labor-management disputes, or, when approved by the
State agency, a similar cause.
(2) For school food authorities, offer meals which meet the
requirements and provisions set forth in Sec. 225.16 during times
designated as meal service periods by the sponsor, and offer the same
meals to all children;
(3) For all other sponsors, serve meals which meet the requirements
and provisions set forth in Sec. 225.16 during times designated as meal
service periods by the sponsor, and serve the same meals to all
children;
(4) Serve meals without cost to all children, except that camps may
charge for meals served to children who are not served meals under the
Program;
(5) Issue a free meal policy statement in accordance with
Sec. 225.6(c);
(6) Meet the training requirement for its administrative and site
personnel, as required under Sec. 225.15(d)(1);
(7) Claim reimbursement only for the type or types of meals
specified in the
[[Page 137]]
agreement and served without charge to children at approved sites during
the approved meal service period, except that camps shall claim
reimbursement only for the type or types of meals specified in the
agreement and served without charge to children who meet the Program's
income standards. The agreement shall specify the approved levels of
meal service for the sponsor's sites if such levels are required under
Sec. 225.6(d)(2). No permanent changes may be made in the serving time
of any meal unless the changes are approved by the State agency;
(8) Submit claims for reimbursement in accordance with procedures
established by the State agency, and those stated in Sec. 225.9;
(9) In the storage, preparation and service of food, maintain proper
sanitation and health standards in conformance with all applicable State
and local laws and regulations;
(10) Accept and use, in quantities that may be efficiently utilized
in the Program, such foods as may be offered as a donation by the
Department;
(11) Have access to facilities necessary for storing, preparing, and
serving food;
(12) Maintain a financial management system as prescribed by the
State agency;
(13) Maintain on file documentation of site visits and reviews in
accordance with Sec. 225.15(d) (2) and (3);
(14) Upon request, make all accounts and records pertaining to the
Program available to State, Federal, or other authorized officials for
audit or administrative review, at a reasonable time and place. The
records shall be retained for a period of 3 years after the end of the
fiscal year to which they pertain, unless audit or investigative
findings have not been resolved, in which case the records shall be
retained until all issues raised by the audit or investigation have been
resolved;
(15) Maintain children on site while meals are consumed; and
(16) Retain final financial and administrative responsibility for
its program.
(f) Special Account. In addition, the State agency may require any
vended sponsor to enter into a special account agreement with the State
agency. The special account agreement shall stipulate that the sponsor
shall establish a special account with a State agency or Federally
insured bank for operating costs payable to the sponsor by the State.
The agreement shall also stipulate that any disbursement of monies from
the account must be authorized by both the sponsor and the food service
management company. The special account agreement may contain such other
terms, agreed to by both the sponsor and the food service management
company, which are consistent with the terms of the contract between the
sponsor and the food service management company. A copy of the special
account agreement shall be submitted to the State agency and another
copy maintained on file by the sponsor. Any charges made by the bank for
the account described in this section shall be considered an allowable
sponsor administrative cost.
(g) Food service management company registration. A State agency may
require each food service management company, operating within the
State, to register based on State procedures. A State agency may further
require the food service management company to certify that the
information submitted on its application for registration is true and
correct and that the food service management company is aware that
misrepresentation may result in prosecution under applicable State and
Federal statutes.
(h) Monitoring of food service management company procurements. (1)
The State agency shall ensure that sponsors' food service management
company procurements are carried out in accordance with Secs. 225.15(g)
and 225.17 of this part.
(2) Each State agency shall develop a standard form of contract for
use by sponsors in contracting with food service management companies.
Sponsors which are public entities, sponsors with exclusive year-round
contracts with a food service management company, and sponsors whose
food service management company contract(s) do not exceed $10,000 in
aggregate value may use their existing or usual form of contract,
provided that such form of contract has been submitted to and approved
by the State agency. The standard contract developed by the State
[[Page 138]]
agency shall expressly and without exception provide that:
(i) All meals prepared by a food service management company shall be
unitized, with or without milk or juice, unless the State agency has
approved, pursuant to paragraph (h)(3) of this section, a request for
exceptions to the unitizing requirement for certain components of a
meal;
(ii) A food service management company entering into a contract with
a sponsor under the Program shall not subcontract for the total meal,
with or without milk, or for the assembly of the meal;
(iii) The sponsor shall provide to the food service management
company a list of State agency approved food service sites, along with
the approved level for the number of meals which may be claimed for
reimbursement for each site, established under Sec. 225.6(d)(2), and
shall notify the food service management company of all sites which have
been approved, cancelled, or terminated subsequent to the submission of
the initial approved site list and of any changes in the approved level
of meal service for a site. Such notification shall be provided within
the time limits mutually agreed upon in the contract;
(iv) The food service management company shall maintain such records
(supported by invoices, receipts, or other evidence) as the sponsor will
need to meet its responsibilities under this part, and shall submit all
required reports to the sponsor promptly at the end of each month,
unless more frequent reports are required by the sponsor;
(v) The food service management company must have State or local
health certification for the facility in which it proposes to prepare
meals for use in the Program. It must ensure that health and sanitation
requirements are met at all times. In addition, the food service
management company must ensure that meals are inspected periodically to
determine bacteria levels present in the meals and that the bacteria
levels found to be present in the meals conform with the standards set
by local health authorities. The results of the inspections must be
submitted promptly to the sponsor and to the State agency.
(vi) The meals served under the contract shall conform to the cycle
menus and meal quality standards and food specifications approved by the
State agency and upon which the bid was based;
(vii) The books and records of the food service management company
pertaining to the sponsor's food service operation shall be available
for inspection and audit by representatives of the State agency, the
Department and the U.S. General Accounting Office at any reasonable time
and place for a period of 3 years from the date of receipt of final
payment under the contract, except that, if audit or investigation
findings have not been resolved, such records shall be retained until
all issues raised by the audit or investigation have been resolved;
(viii) The sponsor and the food service management company shall
operate in accordance with current Program regulations;
(ix) The food service management company shall be paid by the
sponsor for all meals delivered in accordance with the contract and this
part. However, neither the Department nor the State agency assumes any
liability for payment of differences between the number of meals
delivered by the food service management company and the number of meals
served by the sponsor that are eligible for reimbursement;
(x) Meals shall be delivered in accordance with a delivery schedule
prescribed in the contract;
(xi) Increases and decreases in the number of meals ordered shall be
made by the sponsor, as needed, within a prior notice period mutually
agreed upon;
(xii) All meals served under the Program shall meet the requirements
of Sec. 225.16;
(xiii) In cases of nonperformance or noncompliance on the part of
the food service management company, the company shall pay the sponsor
for any excess costs which the sponsor may incur by obtaining meals from
another source;
(xiv) If the State agency requires the sponsor to establish a
special account
[[Page 139]]
for the deposit of operating costs payments in accordance with the
conditions set forth in Sec. 225.6(f), the contract shall so specify;
(xv) The food service management company shall submit records of all
costs incurred in the sponsor's food service operation in sufficient
time to allow the sponsor to prepare and submit the claim for
reimbursement to meet the 60-day submission deadline; and
(xvi) The food service management company shall comply with the
appropriate bonding requirements, as set forth in Sec. 225.15(g) (6)-
(8).
(3) All meals prepared by a food service management company shall be
unitized, with or without milk or juice, unless the sponsor submits to
the State agency a request for exceptions to the unitizing requirement
for certain components of a meal. These requests shall be submitted to
the State agency in writing in sufficient time for the State agency to
respond prior to the sponsor's advertising for bids. The State agency
shall notify the sponsor in writing of its determination in a timely
manner.
(4) Each State agency shall have a representative present at all
food service management company procurement bid openings when sponsors
are expected to receive more than $100,000 in Program payments.
(5) Copies of all contracts between sponsors and food service
management companies, along with a certification of independent price
determination, shall be submitted to the State agency prior to the
beginning of Program operations. Sponsors shall also submit to the State
agency copies of all bids received and their reason for selecting the
food service management company chosen.
(6) All bids in an amount which exceeds the lowest bid shall be
submitted to the State agency for approval before acceptance. All bids
totaling $100,000 or more shall be submitted to the State agency for
approval before acceptance. State agencies shall respond to a request
for approval of such bids within 5 working days of receipt.
(7) Failure by a sponsor to comply with the provisions of this
paragraph or Sec. 225.15(g)(1) shall be sufficient grounds for the State
agency to terminate participation by the sponsor in accordance with
Sec. 225.18(b).
(i) Meal pattern exceptions. The State agency shall review and act
upon requests for exceptions to the meal pattern in accordance with the
guidelines and limitations set forth in Sec. 225.16.
[54 FR 18208, Apr. 27, 1989, as amended at 55 FR 13467, Apr. 10, 1990; ;
64 FR 72484, Dec. 28, 1999; 64 FR 72896, Dec. 29, 1999]
Effective Date Note 1: At 64 FR 72484, Dec. 28, 1999, Sec. 225.6 was
amended by by revising the last sentence in paragraph (a)(2); by
removing paragraph (a)(3) and redesignating paragraphs (a)(4) and (a)(5)
as paragraphs (a)(3) and (a)(4), respectively; by revising newly
redesignated paragraph (a)(4); by revising paragraph (b)(1), (b)(5), and
(b)(6); by removing the words ``or a homeless feeding site'' in
paragraph (c)(2)(ii) introductory text; by revising paragraph (c)(2)(iv)
and (c)(2)(v), paragraph (c)(3) introductory text, paragraph (c)(3)(i),
paragraph (c)(3)(ii) introductory text, and paragraph (c)(3)(ii)(B); by
removing ``or a homeless feeding site,'' from paragraph (d)(1)(i); by
revising paragraph (e) introductory text and paragraphs (e)(1) and
(e)(2); by redesignating paragraphs (e)(3) through (e)(15) as paragraphs
(e)(4) through (e)(16); by adding a new paragraph (e)(3); by revising
paragraph (g); and by revising paragraph (h)(2)(v), effective Jan. 27,
2000. For the convenience of the user, the superseded text follows.
Sec. 225.6 State agency responsibilities.
(a)
* * * * *
(2) * * * State agencies shall identify priority outreach areas in
accordance with FNA guidance and target outreach efforts in these areas.
(3) Each State agency shall take the following steps to determine
the eligibility of private nonprofit organizations to apply to sponsor
the Program in particular areas:
(i) By February 1 each year, compile a list of potentially eligible
sponsors (except potential sponsors which are private nonprofit
organizations, discussed in paragraph (a)(3)(iii) of this section) which
have not previously participated in the Program and contact them. These
potential sponsors shall be encouraged to use their own facilities or
the facilities of public or nonprofit private schools for the
preparation, delivery, and service of meals under the Program.
(ii) By February 1 each year, when contacting the previous year's
school food authority and governmental sponsors as required by paragraph
(a)(3)(i) of this section, ask them to indicate in writing, no later
[[Page 140]]
than March 1, their interest in again serving as Program sponsors, in
providing Program meals at the same sites which they served in the prior
year, and in providing Program meals in new areas which they did not
serve in the previous year. In addition, such entities shall be asked to
list those sites or areas which they served in the prior year but do not
intend to serve in the current year's Program. For each new area which
these entities propose to serve, the school food authority or
governmental sponsor shall describe the area's geographical boundaries
and, whenever possible, the location and estimated dates of operation
and daily attendance of each proposed new site. If such entities
indicate their intention not to provide Program service at a site or in
an area in which they sponsored the Program in the previous year, the
State agency shall consult with the school food authority or unit of
government to determine their reasons for discontinuing service at that
site, and such reasons shall be accurately documented by the State
agency;
(iii) Analyze the information collected as a result of the efforts
described in paragraphs (a)(3)(i) and (a)(3)(ii) of this section and
identify areas which apparently will be unserved in the current year's
Program. After identifying potentially unserved areas, the State agency
shall compile a list of potentially eligible private nonprofit
organizations and contact them to ask that they provide, no later than
April 25, a written indication of their interest in serving as Program
sponsors, the geographical area(s) they propose to serve, and the
approximate number of sites which they propose to serve. For each area
which they propose to serve, the private nonprofit organization shall
describe the area's geographical boundaries and, whenever possible, the
location and estimated dates of operation and daily attendance of each
proposed site. Private nonprofit organizations shall be advised that
they are required to use their own facilities for meal preparation or to
obtain meals from a public facility or a school participating in the
National School Lunch Program; and
(iv) Analyze the information collected as a result of the efforts
described in paragraphs (a)(3)(i)-(a)(3)(iii) of this section and, no
later than May 1, notify private nonprofit organizations responding to
the solicitation of interest described in paragraph (a)(3)(iii) of this
section, of any sites which they would not be allowed to include in
their formal application for Program sponsorships. This analysis shall
be based upon:
(A) The State agency's application of the priority system described
in paragraph (b)(5) of this section; and
(B) The ineligibility of private nonprofit organizations to sponsor
the Program in an area where a school food authority or governmental
sponsor had provided Program meal service during the previous 12 months.
Such ineligibility may be waived by the State agency only if it is
convinced (based on the contact described in paragraph (a)(3)(ii) of
this section or, if the former sponsor did not respond, direct contact
with the school food authority or governmental sponsor) that the school
food authority or governmental sponsor would not have a particular area
regardless of the potential availability of a private nonprofit
organization to sponsor the Program in that area.
* * * * *
(4) In addition to the warnings specified in paragraph (a)(4) of
this section, applications and pre-application materials distributed to
private nonprofit organizations shall include, in bold lettering:
(i) The following criminal penalties and provisions established in
section 13(o) of the National School Lunch Act (42 U.S.C. 1761(o)):
(A) Whoever, in connection with any application, procurement,
recordkeeping entry, claim for reimbursement, or other document or
statement made in connection with the Program, knowingly and willfully
falsifies, conceals, or covers up by any trick, scheme, or device a
material fact, or makes any false, fictitious, or fraudulent statements
or representations, or makes or uses any false writing or document
knowing the same to contain any false, fictitious, or fraudulent
statement or entry, or whoever, in connection with the Program,
knowingly makes an opportunity for any person to defraud the United
States, or does or omits to do any act with intent to enable any person
to defraud the United States, shall be fined not more than $10,000 or
imprisoned not more than five years, or both.
(B) Whoever being a partner, officer, director, or managing agent
connected in any capacity with any partnership, association,
corporation, business, or organization, either public or private, that
receives benefits under the Program, knowingly or willfully embezzles,
misapplies, steals, or obtains by fraud, false statement, or forgery,
any benefits provided by this Program, or any money, funds, assets, or
property derived from benefits provided by this Program, shall be fined
not more than $10,000 or imprisoned for not more than five years, or
both (but, if the benefits, money, funds, assets, or property involved
is not over $200, then the penalty shall be a fine of not more than
$1,000 or imprisonment for not more than one year, or both).
(C) If two or more persons conspire or collude to accomplish any act
described in paragraphs (a)(5)(i) (A) and (B) of this section, and one
or more of such persons do any act to effect the object of the
conspiracy or collusion, each shall be fined not more than
[[Page 141]]
$10,000 or imprisoned for not more than five years, or both.
(ii) The procedures for termination from Program participation of
any site or sponsor which is determined to be seriously deficient in its
administration of the Program. In addition, the application shall also
state that appeals of sponsor or site terminations shall follow
procedures mandated by the State agency and shall also meet the minimum
requirements of 7 CFR 225.13.
(b)Approval of sponsor applications (1) Each State agency shall
inform all of the previous year's sponsors which meet current
eligibility requirements and all other potential sponsors of the
deadline date for submitting a written application for participation in
the Program. The State agency shall require that all applicant sponsors
submit written applications for Program participation to the State
agency by June 15 or, in the case of sponsors applying to administer the
Program at academic-year NYSP sites when they did not participate in the
previous summer's Program, by September 15. However, the State agency
may establish an earlier deadline date for the Program application
submission. Sponsors applying for participation in the Program due to an
unanticipated school closure during the period from October through
April (or at any time of the year in an area with a continuous school
calendar) shall be exempt from the application submission deadline.
* * * * *
(5) The State agency shall use the following order of priority in
approving applicants to operate sites which propose to serve the same
area or the same enrolled children:
(i) Applicants which are public or nonprofit private school food
authorities and other applicants which have demonstrated successful
Program performance in a prior year;
(ii) Applicants which propose to prepare meals at their own
facilities or which operate only one site;
(iii) Applicants which propose to utilize local school food service
facilities for the preparation of meals;
(iv) Other applicants which have demonstrated ability for successful
Program operations;
(v) Applicants which plan to integrate the Program with Federal,
State, or local employment or training programs; and
(vi) Applicants which are private nonprofit organizations.
(6)(i) With the exception of private nonprofit organizations, the
State agency shall not approve any applicant sponsor to operate more
than 200 sites or to serve an average daily attendance of more than
50,000 children unless the applicant can demonstrate to the satisfaction
of the State agency that it has the capability of managing a program of
that size.
(ii) State agencies shall approve no applicant private nonprofit
organization to administer more than 5 urban or 20 rural sites or to
serve more than 2,500 children per day. In addition, no private
nonprofit organization shall be approved to serve any site with an
anticipated attendance of more than 300 children at any approved meal
service at any one site. However, private nonprofit organizations may
apply for a waiver of the limit on the number of children served at a
site in accordance with paragraph (b)(6)(iii) of this section. In
instances where the private nonprofit organization is approved to
administer both rural and urban sites, it may serve a maximum of 20
sites, of which no more than 5 many be urban.
(iii) No applicant private nonprofit organization may apply for a
waiver of the limits on the number of urban, rural, or total sites, or
the total number of children served at each approved meal service at
such sites, which are set forth in paragraph (b)(6)(ii) of this section.
Such applicant private nonprofit organization may, however, apply for a
waiver of the 300-child per site limit set forth at paragraph (b)(6)(ii)
of this section. Such waiver application shall demonstrate to the
satisfaction of the State agency, through the use of school food
service, census tract, or other data, that more than 300 children are
likely to be served at an approved meal service at a given site and that
the sponsor is fully capable of managing a site of this size. In
addition, State agencies shall grant such waivers only if they are
satisfied that no other sponsor is capable of serving the children in
excess of 300 which the applicant sponsor proposes to serve at a
particular meal service and site. In no case may a State agency approve
an applicant private nonprofit organization to serve more than 500
children at any approved meal service at any one site.
(c) * * *
(1) The applicant shall submit a written application to the State
agency for participation in the Program as a sponsor. The State agency
may use the application form developed by FNS or it may develop an
application form for use in the Program. Application shall be made on a
timely basis in accordance with the deadline date established under
Sec. 225.6(b)(1).
(2) At a minimum, the application shall include:
(i) A site information sheet, as developed by the State agency, for
each site where a food service operation is proposed. The site
information sheet shall demonstrate or describe the following:
(A) An organized and supervised system for serving meals to
attending children;
(B) The estimated number and types of meals to be served and the
times of service;
[[Page 142]]
(C) Arrangements, within standards prescribed by the State or local
health authorities, for delivery and holding of meals until time of
service, and arrangements for storing and refrigerating any leftover
meals until the next day;
(D) Arrangements for food service during periods of inclement
weather;
(E) Access to a means of communication for making necessary
adjustments in the number of meals delivered in accordance with the
number of children attending daily at each site;
(F) The geographic area to be served by the site;
(G) The percentage of children in the area to be served by the site
who meet the Program's income standards; and
(H) Whether the site is rural, as defined in Sec. 225.2, or non-
rural, and whether the site's food service will be self-prepared or
vended.
(ii) Along with its site information sheet for a site that is not a
camp, documentation supporting the eligibility of each site as serving
an area in which poor economic conditions exist.
(A) For those sites at which applicants will serve children of
migrant workers, the documentation requirement may be met by providing
the State agency with data from an organization determined by the State
agency to be a migrant organization which supports the eligibility of
those children as a group.
(B) When a sponsor proposes to serve a site which it served in the
previous year, documentation from the previous year may be used to
support the eligibility of the site. For such sites, applicants shall
only be required to obtain new documentation every other year.
(iii) Along with its site information sheet for a site which is a
camp, documentation showing the number of children enrolled in each
session who meet the Program's income standards. If such documentation
is not available at the time of application, it shall be submitted as
soon as possible thereafter and in no case later than the filing of the
camp's claim for reimbursement for each session.
(iv) Along with its site information sheet for a homeless feeding
site, information sufficient to demonstrate that the site is not a
residential child care institution as defined in paragraph (c),
definition of `school', Sec. 210.2 of the National School Lunch Program
regulations, and that the site's primary purpose is to provide shelter
and one or more meal services per day to homeless families. In addition,
if cash payments, food stamps, or any in-kind service are required of
any meal recipient at such site, sponsors shall describe the method(s)
used to ensure that no such payments or services are received for any
Program meal served to children.
(v) Along with its site information sheet for NYSP sites, sponsors
shall certify: That all of the children who will receive Program meals
are enrolled participants in the NYSP; that no child participating in
the NYSP during both the summer months and the academic year shall be
required to submit more than one application to participate in the
summer and academic-year phases of the Program; and that such
applications shall be valid for a period commencing no earlier than May
1 and ending no later than April 30 of the following fiscal year.
(vi) Information in sufficient detail to enable the State agency to
determine whether the applicant meets the criteria for participation in
the Program as set forth in Sec. 225.14; the extent of Program payments
needed, including a request for advance payments and start-up payments,
if applicable; and a staffing and monitoring plan.
(vii) A complete administrative and operating budget for State
agency review and approval. The administrative budget shall contain the
projected administrative expenses which a sponsor expects to incur
during the operation of the Program, and shall include information in
sufficient detail to enable the State agency to assess the sponsor's
ability to operate the Program within its estimated reimbursement. A
sponsor's approved administrative budget shall be subject to subsequent
review by the State agency for adjustments in projected administrative
costs.
(viii) A plan for and a synopsis of its invitation to bid for food
service, if an invitation to bid is required under Sec. 225.15(g).
(ix) A free meal policy statement, as described in paragraph (c)(3)
of this section.
(x) For each applicant which seeks approval under Sec. 225.14(b)(3)
as a unit of local, municipal, county or State government, or under
Sec. 225.14(b)(5) as a private nonprofit organization, certification
that it will directly operate the Program in accordance with
Sec. 225.14(d)(4).
* * * * *
(e) State-Sponsor Agreement. Sponsors approved for participation in
the Program shall enter into written agreements with the State agency.
The agreements shall provide that the sponsor shall:
(1) Operate a nonprofit food service during the period specified, as
follows:
(i) From May through September for children on school vacation;
(ii) At any time of the year, in the case of sponsors administering
the Program under a continuous school calendar system; or
(iii) During the period from October through April, if it serves an
area affected by an unanticipated school closure due to a natural
disaster, major building repairs, court orders relating to school safety
or other issues, labor-management disputes, or, when approved by the
State agency, a similar cause.
[[Page 143]]
(2) Serve meals which meet the requirements and provisions set forth
in Sec. 225.16 during times designated as meal service periods by the
sponsor, and serve the same meals to all children;
* * * * *
(g) Food service management company registration. (1) With the
exception of the exemptions described in paragraph (g)(9) of this
section, each food service management company shall register with the
State by March 15 of each fiscal year. A State agency shall consider a
food service management company's application for registration submitted
after March 15 of the current year only if the State agency determines
and documents that failing to consider the company's application could
potentially result in a significant number of needy children not having
reasonable access to the Program.
(2) By February 1, each State agency shall notify each food service
management company which participated in the State's Program during the
previous two years that it must register with the State agency. This
notification shall include, at a minimum:
(i) A statement that registration with the State agency is a
prerequisite to participation in the Program;
(ii) A list of the items which must be submitted with the
application for registration as set forth in paragraph (g)(4) of this
section;
(iii) A complete description of the criteria developed by the State
agency for determining registrant eligibility; and
(iv) Any other information necessary to apply for registration.
In addition, each State agency shall by February 1 issue a public
announcement of the registration requirement, including all the
information necessary to apply for registration.
(3) Each State agency shall require food service management
companies submitting applications for registration to certify that the
information submitted is true and correct and that the food service
management company is aware that misrepresentation may result in
prosecution under applicable State and Federal statutes.
(4) At a minimum registration shall require:
(i) Submission of the food service management company's name and
mailing address and any other names under which the company has operated
during the past two years;
(ii) A certification that the food service management company meets
applicable State and local health, safety, and sanitation standards;
(iii) Disclosure of present company owners, directors, and officers,
and their relationship in the past two years to any sponsor or food
service management company which participated in the Program;
(iv) Records of contract terminations, disallowances, and health,
safety, and sanitation code violations related to Program participation
during the past two years;
(v) Records of any other contract terminations and health, safety,
and sanitation code violations during the past two years;
(vi) The address or addresses of the company's food preparation and
distribution facilities which will be used in the Program and the name
of the local official responsible for the operation of these facilities;
(vii) The number of Program meals which can be prepared in each
preparation facility during a twenty-four hour period;
(viii) A certification that the food service management company will
operate in accordance with current Program regulations;
(ix) A statement that the food service management company
understands that it will not be paid for meals which are delivered to
non-approved sites, or for meals which are delivered to approved sites
outside of the agreed upon delivery time, or for meals that do not meet
the meal requirements and food specifications contained in the contract
between the sponsor and the food service management company;
(x) Submission of a Certified Public Accountant's audit report if an
audit was performed during the prior year; and
(xi) A statement as to whether the organization is a minority
business enterprise. A minority business enterprise is a business in
which:
(A) The management and daily operations of the business are
controlled by a member or members of a minority group (minority groups
are Blacks, Hispanics, American Indians, Alaskan Natives, Orientals and
Aleuts); and
(B) At least 51 percent of which is owned by a member or members of
a minority group. If the business is a corporation, at least 51 percent
of all classes of voting stock of the corporation must be owned by
members of a minority group; if the business is a partnership, at least
51 percent of the partnership must be owned by a member or members of a
minority group.
(5) Prior to approving a food service management company's request
for registration, the State agency shall provide for inspection of all
food preparation facilities listed on the application for registration,
except those located outside the State. The State agency shall promptly
notify FNSRO of the name and location of any out-of-State facility, and
FNSRO shall ensure that the facility is inspected prior to registration.
The purpose of the inspection is to evaluate each facility's suitability
for preparation of Program
[[Page 144]]
meals. The State agency may waive this inspection requirement if a
facility was registered during the previous summer and operated in
accordance with Program requirements.
(6) No food service management company shall be registered if the
State agency determines that the company lacks the administrative and
financial capability to perform under the Program or if it is
identifiable through its organization or principals as a food service
management company which participated in the Program during any previous
year and was seriously deficient in its Program operation. Serious
deficiencies which are grounds for non-registration include, but are not
limited to, any of the following:
(i) Noncompliance with the applicable bid procedures, contract
requirements, or Program regulations;
(ii) Submission of false information to the State agency;
(iii) Failure to conform meal deliveries to meal orders;
(iv) Delivery of a significant number of meals which did not meet
contract requirements;
(v) Failure to maintain adequate records;
(vi) Significant health code violations which were not corrected
upon reinspection;
(vii) Failure to deliver meals; or
(viii) The conviction of any officer, owner, partner, or manager of
the company for a crime in connection with the prior Program operation.
(7) The State agency shall notify in writing each food service
management company which applied for registration of its determination
within 30 calendar days of receiving the complete application. If the
application for registration is denied, the official making the
determination must notify the food service management company in
writing, stating all the grounds on which the State agency based the
denial.
(8) Each State agency shall submit information to FNS regarding
registration of food service management companies, as required under
Sec. 225.8(d).
(9) The following types of food service management companies are
exempt from the requirement for registration: (i) A school or school
food authority acting as a food service management company; and (ii) a
food service management company which has an exclusive contract with a
school or school food authority for year-round service and has no
contracts with other Program sponsors.
* * * * *
(h) * * *
(2) * * *
(v) The food service management company shall have State or local
health certification for the facility in which it proposes to prepare
meals for use in the Program, and it shall ensure that health and
sanitation requirements are met at all times. In addition, the food
service management company shall provide for meals which it prepares to
be periodically inspected by the local health department or an
independent agency to determine bacteria levels in the meals being
served. These levels shall conform to the standards which are applied by
the local health authority with respect to the level of bacteria which
may be present in meals served by other food service establishments in
the locality. The results of the inspections shall be submitted promptly
to the sponsor and to the State agency;
* * * * *
Effective Date Note 2: At 64 FR 72896, Dec. 29, 1999, Sec. 225.6 was
amended by adding a sentence to the end of paragraph (b)(1); by revising
paragraphs (b)(4), (c)(1), and (c)(2); by redesignating paragraphs
(c)(3) and (c)(4) as paragraphs (c)(4) and (c)(5); by adding paragraph
(c)(3); by adding a heading and by removing the introductory text in
paragraph (c)(4) and adding it as the first sentence in (c)(4)(i); by
removing the reference to paragraph (c)(4) and adding the reference to
paragraph (c)(5) in paragraph (c)(4)(ii)(D); by adding a heading to
paragraph (c)(5); by removing the word ``and'' at the end of paragraph
(d)(1)(ii); by removing the period at the end of paragraph (d)(1)(iii)
and adding ``; and'' by adding paragraph (d)(1)(iv); and by revising
paragraph (e)(1), effective Jan. 28, 2000. For the convenience of the
user, the superseded text follows.
Sec. 225.6 State agency responsibilities.
* * * * *
(b) * * *
(4) The State agency shall determine the eligibility of applicant
sponsors applying for participation in the Program in accordance with
the applicant sponsor eligibility criteria outlined in Sec. 225.14.
However, State agencies may approve the application of an otherwise
eligible applicant which does not provide a year-round service to the
community which it proposes to serve under the Program only if it meets
one or more of the following criteria: (i) It is a residential camp;
(ii) it proposes to provide a food service for the children of migrant
workers; (iii) a failure to do so would deny the Program to an area in
which poor economic conditions exist; or (iv) a significant number of
needy children will not otherwise have reasonable access to the Program.
* * * * *
[[Page 145]]
(c) * * *
(2) * * *
(iv) For sites that serve homeless children, information sufficient
to demonstrate that the sites are not residential child care
institutions, as defined in paragraph (c) of the definition of School in
Sec. 210.2 of this chapter. If cash payments, food stamps, or any in-
kind service are required of any meal recipient at these sites, sponsors
must describe the method(s) used to ensure that no such payments or
services are received for any Program meal served to children. In
addition, sponsors must certify that these sites employ meal counting
methods to ensure that reimbursement is claimed only for meals served to
children.
(v) For NYSP sites, certification from the sponsor that all the
children who will receive Program meals are enrolled participants in the
NYSP.
* * * * *
(3) Each applicant must submit a statement of nondiscrimination in
its policy of serving meals to children. The statement must consist of
an assurance that all children are served the same meals and that there
is no discrimination in the course of the food service. A school sponsor
must submit the policy statement only once, with the initial application
to participate as a sponsor. However, if there is a substantive change
in the school's free and reduced price policy, a revised policy
statement must be provided at the State agency's request.
(i) In addition to the policy of service/nondiscrimination statement
described in paragraph (c)(3) of this section, all applicants except
camps must include a statement that the meals served are free at all
sites.
(ii) In addition to the policy of service/nondiscrimination
statement described in paragraph (c)(3) of this section, all applicants
that are camps that charge separately for meals must include the
following:
* * * * *
(B) A description of the method or methods to be used in accepting
applications from families for Program meals. Such methods must ensure
that households are permitted to apply on behalf of children who are
members of households receiving food stamp, FDPIR, or TANF benefits
using the categorical eligibility procedures described in
Sec. 225.15(f).
* * * * *
(e) * * *
(1) Operate a nonprofit food service during any period from May
through September for children on school vacation; or, at any time of
the year, in the case of sponsors administering the Program under a
continuous school calendar system;
* * * * *
Sec. 225.7 Program monitoring and assistance.
(a) Training. Prior to the beginning of Program operations, each
State agency shall make available training in all necessary areas of
Program administration to sponsor personnel, food service management
company representatives, auditors, and health inspectors who will
participate in the Program in that State. Prior to Program operations,
the State agency shall ensure that the sponsor's supervisory personnel
responsible for the food service receive training in all necessary areas
of Program administration and operations. This training shall reflect
the fact that individual sponsors or groups of sponsors require
different levels and areas of Program training. State agencies are
encouraged to utilize in such training, and in the training of site
personnel, sponsor personnel who have previously participated in the
Program. Training should be made available at convenient locations.
State agencies are not required to conduct this training for sponsors
operating the Program during unanticipated school closures during the
period from October through April (or at any time of the year in an area
with a continuous school calendar).
(b) Program materials. Each State agency shall develop and make
available all necessary Program materials in sufficient time to enable
applicant sponsors to prepare adequately for the Program.
(c) Food specifications and meal quality standards. With the
assistance of the Department, each State agency shall develop and make
available to all sponsors minimum food specifications and model meal
quality standards which shall become part of all contracts between
vended sponsors and food service management companies.
(d) Program monitoring and assistance. The State agency shall
conduct Program monitoring and provide Program assistance according to
the following provisions:
[[Page 146]]
(1) Pre-approval visits. The State agency shall conduct pre-approval
visits of sponsors and sites, as specified below, to assess the
applicant sponsor's or site's potential for successful Program
operations and to verify information provided in the application. The
State agency shall visit prior to approval:
(i) All applicant sponsors which did not participate in the program
in the prior year. However, if a sponsor is a school food authority, has
been reviewed by the State agency under the National School Lunch
Program during the preceding 12 months, and had no significant
deficiencies noted in that review, a pre-approval visit may be conducted
at the discretion of the State agency. In addition, pre-approval visits
of sponsors proposing to operate the Program during unanticipated school
closures during the period from October through April (or at any time of
the year in an area with a continuous school calendar) may be conducted
at the discretion of the State agency;
(ii) All applicant sponsors which, as a result of operational
problems noted in the prior year, the State agency has determined need a
pre-approval visit; and
(iii) All sites which the State agency has determined need a pre-
approval visit.
(2) Sponsor and site reviews--(i) General. The State agency must
review sponsors and sites to ensure compliance with Program regulations,
the Department's non-discrimination regulations (7 CFR part 15) and any
other applicable instructions issued by the Department. In determining
which sponsors and sites to review, the State agency must, at a minimum,
consider the sponsors' and sites' previous participation in the Program,
their current and previous Program performance, and the results of
previous reviews of the sponsor and sites. When the same school food
authority personnel administer this Program as well as the National
School Lunch Program (7 CFR part 210), the State agency is not required
to conduct a review of the Program in the same year in which the
National School Lunch Program operations have been reviewed and
determined to be satisfactory. Reviews shall be conducted as follows:
(ii) Frequency and number of required reviews. State agencies shall:
(A) Conduct a review of every new sponsor at least once during the
first year of operation;
(B) Annually review a number of sponsors whose program
reimbursements, in the aggregate, accounted for at least one-half of the
total program meal reimbursements in the State in the prior year;
(C) Annually review every sponsor which experienced significant
operational problems in the prior year;
(D) Review each sponsor at least once every three years; and
(E) As part of each sponsor review, conduct reviews of at least 10
percent of each sponsor's sites, or one site, whichever number is
greater.
(3) Follow-up reviews. The State agency shall conduct follow-up
reviews of sponsors and sites as necessary.
(4) Monitoring system. Each State agency shall develop and implement
a monitoring system to ensure that sponsors, including site personnel,
and the sponsor's food service management company, if applicable,
immediately receive a copy of any review reports which indicate Program
violations and which could result in a Program disallowance.
(5) Records. Documentation of Program assistance and the results of
such assistance shall be maintained on file by the State agency.
(6) Food service management company facility visits. As a part of
the review of any vended sponsor which contracts for the preparation of
meals, the State agency shall inspect the food service management
company's facilities. Each State agency shall establish an order of
priority for visiting facilities at which food is prepared for the
Program. The State agency shall respond promptly to complaints
concerning facilities. If a food service management company fails to
correct violations noted by the State agency during a review, the State
agency shall notify the sponsor and the food service management company
that reimbursement shall not be paid for meals prepared by the food
service management company
[[Page 147]]
after a date specified in the notification. Funds provided for in
Sec. 225.5(f) may be used for conducting food service management company
facility inspections.
(7) Forms for reviews by sponsors. Each State agency shall develop
and provide monitor review forms to all approved sponsors. These forms
shall be completed by sponsor monitors. The monitor review form shall
include, but not be limited to, the time of the reviewer's arrival and
departure, the site supervisor's signature, a certification statement to
be signed by the monitor, the number of meals prepared or delivered, the
number of meals served to children, the deficiencies noted, the
corrective actions taken by the sponsor, and the date of such actions.
(8) Statistical monitoring. State agencies may use statistical
monitoring procedures in lieu of the site monitoring requirements
prescribed in paragraph (d)(2) of this section to accomplish the
monitoring and technical assistance aspects of the Program. State
agencies which use statistical monitoring procedures may use the
findings in evaluating claims for reimbursement. Statistical monitoring
may be used for some or all of a State's sponsors. Use of statistical
monitoring does not eliminate the requirements for reviewing sponsors as
specified in paragraph (d)(2) of this section.
(9) Corrective actions. Corrective actions which the State agency
may take when Program violations are observed during the conduct of a
review are discussed in Sec. 225.11. The State agency shall conduct
follow-up reviews as appropriate when corrective actions are required.
(e) Other facility inspections and meal quality tests. In addition
to those inspections required by paragraph (d)(6) of this section, the
State agency may also conduct, or arrange to have conducted: inspections
of self-preparation and vended sponsors' food preparation facilities;
inspections of food service sites; and meal quality tests. The
procedures for carrying out these inspections and tests shall be
consistent with procedures used by local health authorities. For
inspections of food service management companies' facilities not
conducted by State agency personnel, copies of the results shall be
provided to the State agency. The company and the sponsor shall also
immediately receive a copy of the results of these inspections when
corrective action is required. If a food service management company
fails to correct violations noted by the State agency during a review,
the State agency shall notify the sponsor and the food service
management company that reimbursement shall not be paid for meals
prepared by the food service management company after a date specified
in the notification. Funds provided for in Sec. 225.5(f) may be used for
conducting these inspections and tests.
(f) Financial management. Each State agency shall establish a
financial management system, in accordance with the Department's Uniform
Financial Assistance Regulations (7 CFR part 3015) and FNS guidance, to
identify allowable Program costs and to establish standards for sponsor
recordkeeping and reporting. The State agency shall provide guidance on
these financial management standards to each sponsor.
(g) Nondiscrimination. (1) Each State agency shall comply with all
requirements of title VI of the Civil Rights Act of 1964, title IX of
the Education Amendments of 1972, section 504 of the Rehabilitation Act
of 1973, the Age Discrimination Act of 1975, and the Department's
regulations concerning nondiscrimination (7 CFR parts 15, 15a and 15b),
including requirements for racial and ethnic participation data
collection, public notification of the nondiscrimination policy, and
reviews to assure compliance with such policy, to the end that no person
shall, on the grounds of race, color, national origin, sex, age, or
handicap, be excluded from participation in, be denied the benefits of,
or be otherwise subjected to discrimination under, the Program.
(2) Complaints of discrimination filed by applicants or participants
shall be referred to FNS or the Secretary of Agriculture, Washington, DC
20250. A State agency which has an established
[[Page 148]]
grievance or complaint handling procedure may resolve sex and handicap
discrimination complaints before referring a report to FNS.
[54 FR 18208, Apr. 27, 1989, as amended at 55 FR 13468, Apr. 10, 1990;
64 FR 72485, Dec. 28, 1999]
Effective Date Note 1: At 64 FR 72485, Dec. 28, 1999, Sec. 225.7 was
amended by removing the last sentence in paragraph (a), by adding a
penultimate sentence to the introductory text in paragraph (d)(2), by
removing paragraph (d)(2)(ii), and by redesignating paragraph
(d)(2)(iii) as paragraph (d)(2)(ii), effective Jan. 27, 2000. For the
convenience of the user, the superseded text follows.
Sec. 225.7 Program monitoring and assistance.
(a) * * * In the training of private nonprofit organizations, State
agencies shall give special emphasis to proper meal counting techniques,
meal pattern requirements, free and reduced price application
requirements, restrictions on second meal service, the prohibition on
off-site meal consumption, timely and accurate claims submission, and
recordkeeping. * * *
* * * * *
(d) * * *
(2) * * *
(ii) Beginning in Fiscal Year 1991, State agencies shall conduct a
review of academic-year NYSP sponsors, and at least one of their sites,
during the period October through April.
* * * * *
Effective Date Note 2: At 64 FR 72898, Dec. 29, 1999, Sec. 225.7 was
amended by adding a new sentence at the end of paragraph (a); by
removing the semicolon at the end of paragraph (d)(1)(i), adding a
period in its place, and adding a new sentence at the end of the
paragraph; by revising paragraph (d)(1)(iii); by removing paragraph
(d)(1)(iv); and by revising paragraph (d)(2), effective Jan. 28, 2000.
For the convenience of the user, the superseded text follows.
Sec. 225.7 Program monitoring and assistance.
* * * * *
(d) * *
(1) * * *
* * * * *
(iii) With the exception of sites administered by private nonprofit
organizations, all proposed nonschool sites with an expected average
daily attendance of 300 children or more which did not participate in
the Program in the prior year.
(iv) In the case of private nonprofit organizations, all proposed
sites with an expected attendance at an approved meal service of 100
children or more which did not participate in the Program in the prior
year.
(2) Sponsor and site reviews. The State agency shall review sponsors
and sites to ensure compliance with Program regulations, the
Department's nondiscrimination regulations (7 CFR part 15) and any other
applicable instructions issued by the Department. In determining which
sponsors and sites to review under this paragraph, the State agency
shall, at a minimum, consider the sponsors' and sites' previous
participation in the Program, their current and previous Program
performance, and the results of any previous reviews of the sponsor and
sites. When the same school food authority personnel administer this
Program as well as the National School Lunch Program (part 210 of this
chapter), the State agency is not required to conduct a review of the
Program in the same year in which the National School Lunch Program
operations have been reviewed and determined to be satisfactory. Reviews
shall be conducted as follows:
(i) State agencies conduct both a review of sponsor operations and
review an average of 15 percent of the following sponsors' sites (with a
minimum of one site reviewed per sponsor) during the first four weeks of
operation:
(A) Private nonprofit organizations which administer only urban
sites, when such sponsors did not participate in the prior year's SFSP
and administer three or more urban sites;
(B) Other private nonprofit organizations which are determined by
the State agency to need early reviews;
(C) Any sponsors, including private nonprofit organizations, which
have 10 or more sites and which did not operate the Program in the prior
year; and
(D) Other sponsors of 10 or more sites which are determined by the
State agency to need early reviews.
(ii) In addition to the reviews specified in paragraphs (d)(2)(i)
and (d)(2)(ii) of this section, the State agency shall also conduct the
following reviews (with a minimum of one site reviewed per sponsor) at
least once during the Program:
(A) For all remaining sponsors with 10 or more sites, an average of
at least 15 percent of their sites; and
(B) For 70 percent of sponsors with fewer than 10 sites, an average
of at least 10 percent of their sites.
* * * * *
[[Page 149]]
Sec. 225.8 Records and reports.
(a) Each State agency shall maintain complete and accurate current
accounting records of its Program operations which will adequately
identify funds authorizations, obligations, unobligated balances,
assets, liabilities, income, claims against sponsors and efforts to
recover overpayments, and expenditures for administrative and operating
costs. These records shall be retained for a period of three years after
the date of the submission of the final Program Operations and Financial
Status Report (SF-269), except that, if audit findings have not been
resolved, the affected records shall be retained beyond the three year
period until such time as any issues raised by the audit findings have
been resolved. The State agency shall also retain a complete record of
each review or appeal conducted, as required under Sec. 225.13, for a
period of three years following the date of the final determination on
the review or appeal. Records may be kept in their original form or on
microfilm.
(b) Each State agency shall submit to FNS a final report on the
Summer Food Service Program Operations (FNS-418) for each month no more
than 90 days following the last day of the month covered by the report.
States shall not receive Program funds for any month for which the final
report is not postmarked and/or submitted within this time limit unless
FNS grants an exception. Upward adjustments to a State's report shall
not be made after 90 days from the month covered by the report unless
authorized by FNS. Downward adjustments shall always be made without FNS
authorization, regardless of when it is determined that such adjustments
need to be made. Adjustments to a State's report shall be reported to
FNS in accordance with procedures established by FNS. Each State agency
shall also submit to FNS a quarterly Financial Status Report (SF-269) on
the use of Program funds. Such reports shall be submitted no later than
30 days after the end of each fiscal year quarter. Obligations shall be
reported only for the fiscal year in which they occur. Action may be
taken against the State agency, in accordance with Sec. 225.5(a)(1), for
failure to submit accurate and timely reports.
(c) The State agency must submit to FNS a final Financial Status
Report no later than 120 days after the end of the fiscal year, on a
form (SF-269) provided by FNS. Any requested increase in reimbursement
levels for a fiscal year resulting from corrective action taken after
submission of the final Program Operations and Financial Status Reports
shall be submitted to FNS for approval. The request shall be accompanied
by a written explanation of the basis for the adjustment and the actions
taken to minimize the need for such adjustments in the future. If FNS
approves such an increase, it will make payment, subject to availability
of funds. Any reduction in reimbursement for that fiscal year resulting
from corrective action taken after submission of the final fiscal year
Program Operations and Financial Status Reports shall be handled in
accordance with the provisions of Sec. 225.12(d), except that amounts
recovered may not be used to make Program payments.
[54 FR 18208, Apr. 27, 1989, as amended at 55 FR 13469, Apr. 10, 1990;
64 FR 72485, Dec. 28, 1999]
Effective Date Note: At 64 FR 72485, Dec. 28, 1999, Sec. 225.8 was
amended by removing paragraphs (d) and (e), effective Jan. 27, 2000. For
the convenience of the user, the superseded text follows.
Sec. 225.8 Records and reports.
* * * * *
(d) By October 15, each State agency shall submit to FNS, on a form
provided by FNS, information concerning each food service management
company which applied to the State agency for registration for that
calendar year's Program. This information shall be made available to
State agencies upon request in order to ensure that only qualified food
service management companies contract for services in all States. FNS
shall allow any food service management company to review the
information concerning that company which was submitted to FNS in
accordance with this paragraph.
(e) No later than May 1 of each year, State agencies shall submit to
the appropriate FNSRO a list of names and addresses of each potential
private nonprofit organization, the geographical area(s) which such
potential sponsors propose to serve, the approximate number of sites
which they propose to serve and, whenever possible, the location and
estimated dates of operation and daily attendance of each proposed site.
Such listing shall
[[Page 150]]
be based on the information gathered and analyzed in accordance with
Sec. 225.6(a)(3) of this part. In addition, within five working days of
approving a private nonprofit organization to participate in the
Program, State agencies shall notify FNS of such approval and shall
provide updated information for each of the private nonprofit
organization's approved sites regarding the sites' locations, dates of
operation, and estimated daily attendance; the duration, number, and
type(s) of approved meal service at each site; and whether the site is
rural or urban, vended or self-preparation, enrolled or open, or is a
homeless feeding site.
* * * * *
Sec. 225.9 Program assistance to sponsors.
(a) Start-up payments. At their discretion, State agencies may make
start-up payments to sponsors which have executed Program agreements.
Start-up payments shall not be made more than two months before the
sponsor is scheduled to begin food service operations and shall not
exceed 20 percent of the sponsor's approved administrative budget. The
amount of the start-up payment shall be deducted from the first advance
payment for administrative costs or, if the sponsor does not receive
advance payments, from the first administrative reimbursement.
(b) Commodity assistance. (1) Sponsors eligible to receive
commodities under the Program include: Self-preparation sponsors;
sponsors which have entered into an agreement with a school or school
food authority for the preparation of meals; and sponsors which are
school food authorities and have competitively procured Program meals
from the same food service management company from which they
competitively procured meals for the National School Lunch Program
during the last period in which school was in session. The State agency
shall make available to these sponsors information on available
commodities. Sponsors shall use in the Program food donated by the
Department and accepted by sponsors.
(2) Not later than June 1 of each year, State agencies shall prepare
a list of the sponsors which are eligible to receive commodities and the
average daily number of eligible meals to be served by each of these
sponsors. If the State agency does not handle the distribution of
commodities donated by the Department, this list shall be forwarded to
the agency of the State responsible for the distribution of commodities.
The State agency shall be responsible for promptly revising the list to
reflect additions or terminations of sponsors and for adjusting the
average daily participation data as it deems necessary.
(c) Advance payments. At the sponsor's request, State agencies shall
make advance payments to sponsors which have executed Program agreements
in order to assist these sponsors in meeting operating costs and
administrative expenses. For sponsors operating under a continuous
school calendar, all advance payments shall be forwarded on the first
day of each month of operation. Advance payments shall be made by the
dates specified in paragraphs (c) (1) and (2) of this section for all
other sponsors whose requests are received at least 30 days prior to
those dates. Requests received less than 30 days prior to those dates
shall be acted upon within 30 days of receipt. When making advance
payments, State agencies shall observe the following criteria:
(1) Operating costs. (i) State agencies shall make advance payments
for operating costs by June 1, July 15, and August 15. Except for school
food authorities, sponsors must conduct training sessions before
receiving the second advance payment. Training sessions must cover
Program duties and responsibilities for the sponsor's staff and for site
personnel.A sponsor shall not receive advance operating cost payments
for any month in which it will participate in the Program for less than
ten days.
(ii) To determine the amount of the advance payment to any sponsor,
the State agency shall employ whichever of the following methods will
result in the larger payment:
(A) The total operating costs paid to the sponsor for the same
calendar month in the preceding year; or
(B) For vended sponsors, 50 percent of the amount determined by the
State agency to be needed that month for
[[Page 151]]
meals, and, for self-preparation sponsors, 65 percent of the amount
determined by the State agency to be needed that month for meals.
(2) Administrative costs. (i) State agencies shall make advance
payments for administrative costs by June 1 and July 15. To be eligible
for the second advance payment, the sponsor must certify that it is
operating the number of sites for which the administrative budget was
approved and that its projected administrative costs do not differ
significantly from the approved budget. A sponsor shall not receive
advance administrative costs payments for any month in which it will
participate in the Program for less than 10 days. However, if a sponsor
operates for less than 10 days in June but for at least 10 days in
August, the second advance administrative costs payment shall be made by
August 15.
(ii) Each payment shall equal one-third of the total amount which
the State agency determines the sponsor will need to administer its
program. For sponsors which will operate for 10 or more days in only one
month and, therefore, will qualify for only one advance administrative
costs payment, the payment shall be no less than one-half, and no more
than two-thirds, of the total amount which the State agency determines
the sponsor will need to administer its program.
(3) Advance payment estimates. When determining the amount of
advance payments payable to the sponsor, the State agency shall make the
best possible estimate based on the sponsor's request and any other
available data. Under no circumstances may the amount of the advance
payment for operating or administrative costs exceed the amount
estimated by the State agency to be needed by the sponsor to meet
operating or administrative costs, respectively.
(4) Limit. The sum of the advance operating and administrative costs
payments to a sponsor for any one month shall not exceed $40,000 unless
the State agency determines that a larger payment is necessary for the
effective operation of the Program and the sponsor demonstrates
sufficient administrative and managerial capability to justify a larger
payment.
(5) Deductions from advance payments. The State agency shall deduct
from either advance operating payments or advance administrative
payments the amount of any previous payment which is under dispute or
which is part of a demand for recovery under Sec. 225.12.
(6) Withholding of advance payments. If the State agency has reason
to believe that a sponsor will not be able to submit a valid claim for
reimbursement covering the month for which advance payments have already
been made, the subsequent month's advance payment shall be withheld
until a valid claim is received.
(7) Repayment of excess advance payments. Upon demand of the State
agency, sponsors shall repay any advance Program payments in excess of
the amount cited on a valid claim for reimbursement.
(d) Reimbursements. Sponsors shall not be eligible for
reimbursements for operating and administrative costs unless they have
executed an agreement with the State agency. All reimbursements shall be
in accordance with the terms of this agreement. Reimbursements shall not
be paid for meals served at a site before the sponsor has received
written notification that the site has been approved for participation
in the Program. Income accruing to a sponsor's program shall be deducted
from combined operating and administrative costs. The State agency may
make full or partial reimbursement upon receipt of a claim for
reimbursement, but shall first make any necessary adjustments in the
amount to be paid. The following requirements shall be observed in
submitting and paying claims:
(1) School food authorities that operate the Program, and operate
more than one child nutrition program under a single State agency, must
use a common claim form (as provided by the State agency) for claiming
reimbursement for meals served under those programs.
(2) No reimbursement may be issued until the sponsor certifies that
it operated all sites for which it is approved and that there has been
no significant change in its projected administrative costs since its
preceding claim and, for
[[Page 152]]
a sponsor receiving an advance payment for only one month, that there
has been no significant change in its projected administrative costs
since its initial advance administrative costs payment.
(3) Sponsors which operate less than 10 days in the final month of
operations shall submit a combined claim for the final month and the
immediate preceding month within 60 days of the last day of operation.
(4) The State agency shall forward reimbursements within 45 days of
receiving valid claims. If a claim is incomplete or invalid, the State
agency shall return the claim to the sponsor within 30 days with an
explanation of the reason for disapproval. If the sponsor submits a
revised claim, final action shall be completed within 45 days of
receipt.
(5) Claims for reimbursement shall report information in accordance
with the financial management system established by the State agency,
and in sufficient detail to justify the reimbursement claimed and to
enable the State agency to provide the Reports of Summer Food Service
Program Operations required under Sec. 225.8(b). In submitting a claim
for reimbursement, each sponsor shall certify that the claim is correct
and that records are available to support this claim. Failure to
maintain such records may be grounds for denial of reimbursement for
meals served and/or administrative costs claimed during the period
covered by the records in question. The costs of meals served to adults
performing necessary food service labor may be included in the claim.
Under no circumstances may a sponsor claim the cost of any disallowed
meals as operating costs.
(6) A final Claim for Reimbursement shall be postmarked and/or
submitted to the State agency not later than 60 days after the last day
of the month covered by the claim. State agencies may establish shorter
deadlines at their discretion. Claims not filed within the 60 day
deadline shall not be paid with Program funds unless FNS determines that
an exception should be granted. The State agency shall promptly take
corrective action with respect to any Claim for Reimbursement as
determined necessary through its claim review process or otherwise. In
taking such corrective action, State agencies may make upward
adjustments in Program funds claimed on claims filed within the 60 day
deadline if such adjustments are completed within 90 days of the last
day of the month covered by the claim and are reflected in the final
Program Operations Report (FNS-418). Upward adjustments in Program funds
claimed which are not reflected in the final FNS-418 for the month
covered by the claim cannot be made unless authorized by FNS. Downward
adjustments in Program funds claimed shall always be made without FNS
authorization, regardless of when it is determined that such adjustments
are necessary.
(7) Payments to a sponsor for operating costs must equal the lesser
of the following totals:
(i) The actual operating costs incurred by the sponsor; or
(ii) The sum of the amounts derived by multiplying the number of
meals, by type, actually served under the sponsor's program to eligible
children by the current rates for each meal type, as adjusted in
accordance with paragraph (d)(9) of this section.
(8) Payments to a sponsor for administrative costs must equal the
lowest of the following totals:
(i) The amount estimated in the sponsor's approved administrative
budget (taking into account any amendments);
(ii) The actual administrative costs incurred by the sponsor; or
(iii) The sum of the amounts derived by multiplying the number of
meals, by type, actually served under the sponsor's program to eligible
children by the current administrative rates for each meal type, as
adjusted in accordance with paragraph (d)(9) of this section. Sponsors
must be eligible to receive additional administrative reimbursement for
each meal served to participating children at rural or self-preparation
sites, and the rates for such additional administrative reimbursement
must be adjusted in accordance with paragraph (d)(9) of this section.
(9) On each January 1, or as soon thereafter or as practicable, FNS
will
[[Page 153]]
publish a notice in the Federal Register announcing any adjustment to
the reimbursement rates described in paragraphs (d)(7)(ii) and
(d)(8)(iii) of this section. Adjustments will be based upon changes in
the series for food away from home of the Consumer Price Index(CPI) for
all urban consumers since the establishment of the rates. Higher rates
will be established for Alaska and Hawaii, based on the CPI for those
States.
(10) Sponsors of camps shall be reimbursed only for meals served to
children in camps whose eligibility for Program meals is documented.
Sponsors of NYSP sites shall only claim reimbursement for meals served
to children enrolled in the NYSP.
(11) If a State agency has reason to believe that a sponsor or food
service management company has engaged in unlawful acts in connection
with Program operations, evidence found in audits, reviews, or
investigations shall be a basis for nonpayment of the applicable
sponsor's claims for reimbursement.
(e) The sponsor may claim reimbursement for any meals which are
examined for meal quality by the State agency, auditors, or local health
authorities and found to meet the meal pattern requirements.
(f) The sponsor shall not claim reimbursement for meals served to
children at any site in excess of the site's approved level of meal
service, if one has been established under Sec. 225.6(d)(2). However,
the total number of meals for which operating costs are claimed may
exceed the approved level of meal service if the meals exceeding this
level were served to adults performing necessary food service labor in
accordance with paragraph (d)(5) of this section. In reviewing a
sponsor's claim, the State agency shall ensure that reimbursements for
second meals are limited to the percentage tolerance established in
Sec. 225.15(b)(4).
[54 FR 18208, Apr. 27, 1989, as amended at 55 FR 13469, Apr. 10, 1990;
64 FR 72485, Dec. 28, 1999]
Effective Date Note: At 64 FR 72485, Sec. 225.9 was amended by
removing the second sentence and adding in its place two new sentences
in paragraph (c)(1)(i); by removing paragraph (d)(10); by redesignating
paragraphs (d)(1) through (d)(9) as paragraphs (d)(2) through (d)(10);
by adding paragraph (d)(1); by revising newly redesignated paragraphs
(d)(7), (d)(8) and (d)(9); and by amending the second sentence in
paragraph (f) by removing ``paragraph (d)(4)'' and adding in its place
``paragraph (d)(5)'', effective Jan. 27, 2000. For the convenience of
the user, the superseded text follows.
Sec. 225.9 Program assistance to sponsors.
(c) * * *
(1) Operating costs. (i) * * *
(i) * * * To be eligible for the second advance payment, the sponsor
must have conducted training sessions covering Program duties and
responsibilities for its own personnel and for site personnel.* * *
* * * * *
(d) * * *
* * * * *
(7) With the exception of academic-year NYSP sponsors, whose
reimbursements are set forth in paragraph (d)(10) of this section,
payments to a sponsor for operating costs shall equal the lesser of the
following totals:
(i) The actual operating costs incurred by the sponsor; or
(ii) The sum of the amounts derived by multiplying the number of
meals, by type, actually served under the sponsor's program to eligible
children by the current rates for each meal type, as adjusted in
accordance with paragraph (d)(8) of this section.
(8) With the exception of academic-year NYSP sponsors, whose
reimbursements are set forth in paragraph (d)(10) of this section,
payments to a sponsor for administrative costs shall equal the lowest of
the following totals:
(i) The amount estimated in the sponsor's approved administrative
budget (taking into account any amendments);
(ii) The actual administrative costs incurred by the sponsor; or
(iii) The sum of the amounts derived by multiplying the number of
meals, by type, actually served under the sponsor's program to eligible
children by the current administrative rates for each meal type, as
adjusted in accordance with paragraph (d)(8) of this section. Sponsors
shall be eligible to receive additional administrative reimbursement for
each meal served to participating children at rural or self-preparation
sites, and the rates for such additional administrative reimbursement
shall be adjusted in accordance with paragraph (d)(8) of this section.
(9) Each January 1, FNS shall publish a notice in the Federal
Register announcing any adjustment to the reimbursement rates described
in paragraphs (d) (6)(ii) and (7)(iii) of this section. Adjustments
shall be based
[[Page 154]]
upon changes in the series for food away from home of the Consumer Price
Index for all Urban Consumers since the establishment of the rates.
(10) Sponsors of NYSP sites operating during the academic year shall
claim reimbursement for no more than 30 days of meal service for the
period October through April. For meals served to children at NYSP sites
during the months October through April, sponsors shall be reimbursed as
follows:
(i) For each eligible lunch or supper served, the rate for lunches
served free in the National School Lunch Program, as described in 7 CFR
part 210, Sec. 210.4(b).
(ii) For each eligible breakfast or supplement served, the rate for
severe need breakfasts served free in the School Breakfast Program, as
described in 7 CFR part 220, Sec. 220.9(b).
* * * * *
Sec. 225.10 Audits and management evaluations.
(a) Audits. State agencies shall arrange for audits of their own
operations to be conducted in accordance with the Department's Uniform
Federal Assistance Regulations (7 CFR part 3015). Unless otherwise
exempt, sponsors shall arrange for audits to be conducted in accordance
with 7 CFR part 3015. State agencies shall provide OIG with full
opportunity to audit the State agency and sponsors. Each State agency
shall make available its records, including records of the receipt and
expenditure of funds, upon a reasonable request from OIG. While OIG
shall rely to the fullest extent feasible upon State-sponsored audits of
sponsors, it shall, when considered necessary, (1) make audits on a
State-wide basis, (2) perform on-site test audits, and (3) review audit
reports and related working papers of audits performed by or for State
agencies.
(b) Management evaluations. (1) State agencies shall provide FNS
with full opportunity to conduct management evaluations (including
visits to sponsors) of all operations of the State agency. Each State
agency shall make available its records, including records of the
receipts and expenditures of funds, upon a reasonable request by FNS.
(2) The State agency shall fully respond to any recommendations made
by FNSRO pursuant to the management evaluation.
(3) FNSRO may require the State agency to submit on 20 days notice a
corrective action plan regarding serious problems observed during any
phase of the management evaluation.
(c) Disregards. In conducting management evaluations or audits for
any fiscal year, the State agency, FNS or OIG may disregard overpayment
which does not exceed $100 or, in the case of State agency administered
programs, does not exceed the amount established by State law,
regulations or procedures as a minimum for which claims will be made for
State losses generally. No overpayment shall be disregarded, however,
when there are unpaid claims for the same fiscal year from which the
overpayment can be deducted or when there is substantial evidence of
violation of criminal law or civil fraud statutes.
Sec. 225.11 Corrective action procedures.
(a) Purpose. The provisions in this section shall be used by the
State agency to improve Program performance.
(b) Investigations. Each State agency shall promptly investigate
complaints received or irregularities noted in connection with the
operation of the Program, and shall take appropriate action to correct
any irregularities. The State agency shall maintain on file all evidence
relating to such investigations and actions. The State agency shall
inform the appropriate FNSRO of any suspected fraud or criminal abuse in
the Program which would result in a loss or misuse of Federal funds. The
Department may make investigations at the request of the State agency,
or where the Department determines investigations are appropriate.
(c) Denial of applications and termination of sponsors. Except as
specified below, the State agency shall not enter into an agreement with
any applicant sponsor identifiable through its corporate organization,
officers, employees, or otherwise, as an institution which participated
in any Federal child nutrition program and was seriously deficient in
its operation of any such program. The State agency shall terminate the
Program agreement with any
[[Page 155]]
sponsor which it determines to be seriously deficient. However, the
State agency shall afford a sponsor reasonable opportunity to correct
problems before terminating the sponsor for being seriously deficient.
The State agency may approve the application of a sponsor which has been
disapproved or terminated in prior years in accordance with this
paragraph if the sponsor demonstrates to the satisfaction of the State
agency that the sponsor has taken appropriate corrective actions to
prevent recurrence of the deficiencies. Serious deficiencies which are
grounds for disapproval of applications and for termination include, but
are not limited to, any of the following:
(1) Noncompliance with the applicable bid procedures and contract
requirements of Federal child nutrition program regulations;
(2) The submission of false information to the State agency;
(3) Failure to return to the State agency any start-up or advance
payments which exceeded the amount earned for serving meals in
accordance with this part, or failure to submit all claims for
reimbursement in any prior year, provided that failure to return any
advance payments for months for which claims for reimbursement are under
dispute from any prior year shall not be grounds for disapproval in
accordance with this paragraph; and
(4) Program violations at a significant proportion of the sponsor's
sites. Such violations include, but are not limited to, the following:
(i) Noncompliance with the meal service time restrictions set forth
at Sec. 225.16(c);
(ii) Failure to maintain adequate records;
(iii) Failure to adjust meal orders to conform to variations in the
number of participating children;
(iv) The simultaneous service of more than one meal to any child;
(v) The claiming of Program payments for meals not served to
participating children;
(vi) Service of a significant number of meals which did not include
required quantities of all meal components;
(vii) Excessive instances of off-site meal consumption;
(viii) Continued use of food service management companies that are
in violation of health codes.
(d) Meal service restriction. With the exception for residential
camps set forth at Sec. 225.16(b)(1)(ii), the State agency shall
restrict to one meal service per day:
(1) Any food service site which is determined to be in violation of
the time restrictions for meal service set forth at Sec. 225.16(c) when
corrective action is not taken within a reasonable time as determined by
the State agency; and
(2) All sites under a sponsor if more than 20 percent of the
sponsor's sites are determined to be in violation of the time
restrictions set forth at Sec. 225.16(c).
If this action results in children not receiving meals under the
Program, the State agency shall make reasonable effort to locate another
source of meal service for these children.
(e) Meal disallowances. (1) If the State agency determines that a
sponsor has failed to plan, prepare, or order meals with the objective
of providing only one meal per child at each meal service at a site, the
State agency shall disallow the number of children's meals prepared or
ordered in excess of the number of children served.
(2) If the State agency observes meal service violations during the
conduct of a site review, the State agency shall disallow as meals
served to children all of the meals observed to be in violation.
(3) The State agency shall also disallow children's meals which are
in excess of a site's approved level established under Sec. 225.6(d)(2).
(f) Corrective action and termination of sites. (1) Whenever the
State agency observes violations during the course of a site review, it
shall require the sponsor to take corrective action. If the State agency
finds a high level of meal service violations, the State agency shall
require a specific immediate corrective action plan to be followed by
the sponsor and shall either conduct a follow-up visit or in some other
manner verify that the specified corrective action has been taken.
(2) The State agency shall terminate the participation of a
sponsor's site if the sponsor fails to take action to correct the
Program violations noted in a
[[Page 156]]
State agency review report within the timeframes established by the
corrective action plan.
(3) The State agency shall immediately terminate the participation
of a sponsor's site if during a review it determines that the health or
safety of the participating children is imminently threatened.
(4) If the site is vended, the State agency shall within 48 hours
notify the food service management company providing meals to the site
of the site's termination.
[54 FR 18208, Apr. 27, 1989, as amended at 55 FR 13469, Apr. 10, 1990]
Sec. 225.12 Claims against sponsors.
(a) The State agency shall disallow any portion of a claim for
reimbursement and recover any payment to a sponsor not properly payable
under this part, except as provided for in Sec. 225.10(c). State
agencies may consider claims for reimbursement not properly payable if a
sponsor's records do not justify all costs and meals claimed. However,
the State agency shall notify the sponsor of the reasons for any
disallowance or demand for repayment.
(b) Minimum State agency collection procedures for unearned payments
shall include:
(1) Written demand to the sponsor for the return of improper
payments;
(2) If after 30 calendar days the sponsor fails to remit full
payment or agree to a satisfactory repayment schedule, a second written
demand for the return of improper payments, sent by certified mail,
return receipt requested;
(3) If after 60 calendar days following the original written demand,
the sponsor fails to remit full payment or agree to a satisfactory
repayment schedule, a third written demand for the return of improper
payments, sent by certified mail, return receipt requested;
(4) If after 90 calendar days following the original written demand,
the sponsor fails to remit full payment or agree to a satisfactory
repayment schedule, the State agency shall refer the claim against the
sponsor to the appropriate State or Federal authorities for pursuit of
legal remedies.
(c) If FNS does not concur with the State agency's action in paying
a sponsor or in failing to collect an overpayment, FNS shall notify the
State agency of its intention to assert a claim against the State
agency. In all such cases, the State agency shall have full opportunity
to submit evidence concerning the action taken. The State agency shall
be liable to FNS for failure to collect an overpayment unless FNS
determines that the State agency has conformed with this part in issuing
the payment and has exerted reasonable efforts in accordance with
paragraph (b) of this section to recover the improper payment.
(d) The amounts recovered by the State agency from sponsors may be
utilized to make Program payments to sponsors for the period for which
the funds were initially available and/or to repay the State for any of
its own funds used to make payments on claims for reimbursement. Any
amounts recovered which are not so utilized shall be returned to FNS in
accordance with the requirements of this part.
Sec. 225.13 Appeal procedures.
(a) Each State agency shall establish a procedure to be followed by
an applicant appealing: A denial of an application for participation; a
denial of a sponsor's request for an advance payment; a denial of a
sponsor's claim for reimbursement (except for late submission under
Sec. 225.9(d)(5)); a State agency's refusal to forward to FNS an
exception request by the sponsor for payment of a late claim or a
request for an upward adjustment to a claim; a claim against a sponsor
for remittance of a payment; the termination of the sponsor or a site; a
denial of a sponsor's application for a site; a denial of a food service
management company's application for registration, if applicable; or the
revocation of a food service management company's registration, if
applicable. Appeals shall not be allowed on decisions made by FNS with
respect to late claims or upward adjustments under Sec. 225.9(d)(5).
(b) At a minimum, appeal procedures shall provide that:
(1) The sponsor or food service management company be advised in
writing of the grounds upon which the State agency based the action. The
notice of action, which shall be sent by certified
[[Page 157]]
mail, return receipt requested, shall also state that the sponsor or
food service management company has the right to appeal the State's
action;
(2) The sponsor or food service management company be advised in
writing that the appeal must be made within a specified time and must
meet the requirements of paragraph (b)(4) of this section. The State
agency shall establish this period of time at not less than one week nor
more than two weeks from the date on which the notice of action is
received;
(3) The appellant be allowed the opportunity to review any
information upon which the action was based;
(4) The appellant be allowed to refute the charges contained in the
notice of action either in person or by filing written documentation
with the review official. To be considered, written documentation must
be submitted by the appellant within seven days of submitting the
appeal, must clearly identify the State agency action being appealed,
and must include a photocopy of the notice of action issued by the State
agency;
(5) A hearing be held by the review official in addition to, or in
lieu of, a review of written information submitted by the appellant only
if the appellant so specifies in the letter appealing the action. The
appellant may retain legal counsel or may be represented by another
person. Failure of the appellant's representative to appear at a
scheduled hearing shall constitute the appellant's waiver of the right
to a personal appearance before the review official, unless the review
official agrees to reschedule the hearing. A representative of the State
agency shall be allowed to attend the hearing to respond to the
appellant's testimony and written information and to answer questions
from the review official;
(6) If the appellant has requested a hearing, the appellant and the
State agency shall be provided with at least 5 days advance written
notice, sent by certified mail, return receipt requested, of the time
and place of the hearing;
(7) The hearing be held within 14 days of the date of the receipt of
the request for review, but, where applicable, not before the
appellant's written documentation is received in accordance with
paragraphs (b) (4) and (5) of this section;
(8) The review official be independent of the original decision-
making process;
(9) The review official make a determination based on information
provided by the State agency and the appellant, and on Program
regulations;
(10) Within 5 working days after the appellant's hearing, or within
5 working days after receipt of written documentation if no hearing is
held, the reviewing official make a determination based on a full review
of the administrative record and inform the appellant of the
determination of the review by certified mail, return receipt requested;
(11) The State agency's action remain in effect during the appeal
process. However, participating sponsors and sites may continue to
operate the Program during an appeal of termination, and if the appeal
results in overturning the State agency's decision, reimbursement shall
be paid for meals served during the appeal process. However, such
continued Program operation shall not be allowed if the State agency's
action is based on imminent dangers to the health or welfare of
children. If the sponsor or site has been terminated for this reason,
the State agency shall so specify in its notice of action; and
(12) The determination by the State review official is the final
administrative determination to be afforded to the appellant.
(c) The State agency shall send written notification of the complete
appeal procedures and of the actions which are appealable, as specified
in paragraph (a) of this section, to each potential sponsor applying to
participate and to each food service management company applying to
register in accordance with Sec. 225.6(g).
(d) A record regarding each review shall be kept by the State
agency, as required under Sec. 225.8(a). The record shall document the
State agency's compliance with these regulations and shall include the
basis for its decision.
[54 FR 18208, Apr. 27, 1989, as amended at 64 FR 72486, Dec. 28, 1999]
[[Page 158]]
Effective Date Note: At 64 FR 72486, Dec. 28, 1999, Sec. 225.13 was
amended by adding ``,if applicable'' after ``registration'' wherever it
appears in paragraph (a), effective Jan. 27, 2000.
Subpart C--Sponsor and Site Provisions
Sec. 225.14 Requirements for sponsor participation.
(a) Applications. Sponsors shall make written application to the
State agency to participate in the Program. Such application shall be
made on a timely basis in accordance with the requirements of
Sec. 225.6(b)(1). Sponsors proposing to operate a site during an
unanticipated school closure during the period from October through
April (or at any time of the year in an area with a continuous school
calendar) may be exempt, at the discretion of the State agency, from
submitting a new application if they have participated in the program at
any time during the current year or in either of the prior two calendar
years.
(b) Sponsor eligibility. Applicants eligible to sponsor the Program
include:
(1) Public or nonprofit private school food authorities;
(2) Public or nonprofit private residential summer camps;
(3) Units of local, municipal, county, or State governments;
(4) Public or private nonprofit colleges or universities which are
currently participating in the National Youth Sports Program; and
(5) Private nonprofit organizations as defined in Sec. 225.2.
(c) General requirements. No applicant sponsor shall be eligible to
participate in the Program unless it:
(1) Demonstrates financial and administrative capability for Program
operations and accepts final financial and administrative responsibility
for total Program operations at all sites at which it proposes to
conduct a food service;
(2) Has not been seriously deficient in operating the Program;
(3) Will conduct a regularly scheduled food service for children
from areas in which poor economic conditions exist, or qualifies as a
camp;
(4) Has adequate supervisory and operational personnel for overall
monitoring and management of each site, including adequate personnel to
conduct the visits and reviews required in Secs. 225.15(d) (2) and (3);
(5) Provides an ongoing year-round service to the community which it
proposes to serve under the Program, except as provided for in
Sec. 225.6(b)(4);
(6) Certifies that all sites have been visited and have the
capability and the facilities to provide the meal service planned for
the number of children anticipated to be served; and
(7) Enters into a written agreement with the State agency upon
approval of its application, as required in Sec. 225.6(e).
(d) Requirements specific to sponsor types.
(1) If the sponsor is a camp, it shall certify that it will collect
information on participants' eligibility to support its claim for
reimbursement.
(2) If the sponsor administers the Program at sites at which summer
school is in session, it shall ensure that such sites are open both to
children enrolled in summer school and to all children residing in the
area served by the site.
(3) Sponsors which are units of local, municipal, county or State
government, and sponsors which are private nonprofit organizations,
shall be approved to administer the Program only at sites over which
they have direct operational control. Such operational control means
that the sponsor shall be responsible for:
(i) Managing site staff, including such areas as hiring, terminating
and determining conditions of employment for site staff; and
(ii) Exercising management control over Program operations at sites
throughout the period of Program participation by performing the
functions specified in Sec. 225.15.
(4) If the sponsor administers homeless feeding sites, it shall
document that the site is not a residential child care institution as
defined in paragraph (c), definition of `school', Sec. 210.2 of the
National School Lunch Program regulations, and that the site's primary
purpose is to provide shelter and meals to homeless families. In
addition, sponsors of homeless feeding sites shall certify that such
sites employ meal counting methods which ensure
[[Page 159]]
that reimbursement is claimed only for meals served to homeless and non-
homeless children.
(5) If the sponsor administers NYSP sites, it shall ensure that
applications have been taken to document the site's eligibility and that
all children at such sites are enrolled participants in the NYSP.
(6) If the sponsor is a private nonprofit organization, it shall
certify that it:
(i) Serves a total of not more than 2,500 children per day;
(ii) Serves no more than five sites in any urban area, or 20 sites
in any rural area, with not more than 300 children being served at any
approved meal service at any one site (or, with a waiver granted by the
State in accordance with Sec. 225.6(b)(6)(iii) of this part, not more
than 500 children being served at any approved meal service at any one
site);
(iii) Either uses self-preparation facilities to prepare meals or
obtains meals from a public facility (such as a school district, public
hospital, or State university) or a school participating in the National
School Lunch Program;
(iv) Operates in areas where a school food authority or the local,
municipal, or county government has not indicated by March 1 of the
current year that such authority or unit of local government will
operate the Program in the current year (except that, if a school food
authority or local, municipal, or county government has served that area
in the prior year's Program, the private nonprofit organization may only
operate in that area if it receives a waiver from the State agency in
accordance with Sec. 225.6(a)(3)(iv)(B));
(v) Exercises full control and authority over the operation of the
Program at all sites under its sponsorship;
(vi) Provides ongoing year-round activities for children or
families;
(vii) Demonstrates that it possesses adequate management and the
fiscal capacity to operate the Program; and
(viii) Meets applicable State and local health, safety, and
sanitation standards.
[54 FR 18208, Apr. 27, 1989, as amended at 55 FR 13469, Apr. 10, 1990;
64 FR 72486, Dec. 28, 1999; 64 FR 72898, Dec. 29, 1999]
Effective Date Note 1: At 64 FR 72486, Dec. 28, 1999, Sec. 225.14
was amended by removing ``or a homeless feeding site'' from paragraphs
(c)(3) and (d)(1); by redesignating paragraphs (d)(6) and (d)(7) as
(d)(5) and (d)(6); and by revising paragraphs (d)(5) and (d)(6),
effective Jan. 27, 2000. For the convenience of the user, the superseded
text follows.
Subpart C--Sponsor and Site Provisions
Sec. 225.14
(d) * * *
(6) If the sponsor administers NYSP sites, it shall ensure that
applications have been taken to document the site's eligibility and that
all children at such sites are enrolled participants in the NYSP.
(7) If the sponsor is a private nonprofit organization, it shall
certify that it:
(i) Serves a total of not more than 2,500 children per day;
(ii) Serves no more than five sites in any urban area, or 20 sites
in any rural area, with not more than 300 children being served at any
approved meal service at any one site (or, with a waiver granted by the
State in accordance with Sec. 225.6(b)(6)(iii) of this part, not more
than 500 children being served at any approved meal service at any one
site);
(iii) Either uses self-preparation facilities to prepare meals or
obtains meals from a public facility (such as a school district, public
hospital, or State university) or a school participating in the National
School Lunch Program;
(iv) Operates in areas where a school food authority or the local,
municipal, or county government has not indicated by March 1 of the
current year that such authority or unit of local government will
operate the Program in the current year (except that, if a school food
authority or local, municipal, or county government has served that area
in the prior year's Program, the private nonprofit organization may only
operate in that area if it receives a waiver from the State agency in
accordance with Sec. 225.6(a)(3)(iv)(B));
(v) Exercises full control and authority over the operation of the
Program at all sites under its sponsorship;
(vi) Provides ongoing year-round activities for children or
families;
(vii) Demonstrates that it possesses adequate management and the
fiscal capacity to operate the Program; and
(viii) Meets applicable State and local health, safety, and
sanitation standards.
* * * * *
Effective Date Note 2: At 64 FR 72898, Dec. 29, 1999, Sec. 225.14
was amended by adding
[[Page 160]]
a new sentence at the end of paragraph (a); by removing paragraph
(d)(1); and by redesignating paragraphs (d)(2) through (d)(6) as
paragraphs (d)(1) through (d)(5), respectively, effective Jan. 28, 2000.
For the convenience of the user, the superseded text follows.
Subpart C--Sponsor and Site Provisions
Sec. 225.14
* * * * *
(d) * * * (1) If the sponsor is not a camp, it shall provide
documentation that its food service will serve children from an area in
which poor economic conditions exist, as defined in Sec. 225.2.
* * * * *
Sec. 225.15 Management responsibilities of sponsors.
(a) General. (1) Sponsors shall operate the food service in
accordance with: the provisions of this part; any instructions and
handbooks issued by FNS under this part; and any instructions and
handbooks issued by the State agency which are not inconsistent with the
provisions of this part.
(2) Sponsors shall not claim reimbursement under parts 210, 215,
220, or 226 of this chapter. In addition, the sponsor must ensure that
records of any site serving homeless children accurately reflect
commodity allotments received as a ``charitable institution'', as
defined in Secs. 250.3 and 250.41 of this chapter. Commodities received
for Program meals must be based only on the number of eligible
children's meals served. Sponsors may use funds from other Federally-
funded programs to supplement their meal service but must, in
calculating their claim for reimbursement, deduct such funds from total
operating and administrative costs in accordance with the definition of
``income accruing to the Program'' at Sec. 225.2 and with the
regulations at Sec. 225.9(d). Sponsors which are school food authorities
may use facilities, equipment and personnel supported by funds provided
under this part to support a nonprofit nutrition program for the
elderly, including a program funded under the Older Americans Act of
1965 (42 U.S.C. 3001 et seq.).
(3) No sponsor may contract out for the management responsibilities
of the Program described in this section.
(b) Meal Ordering. (1) Each sponsor shall, to the maximum extent
feasible, utilize either its own food service facilities or obtain meals
from a school food service facility. If the sponsor obtains meals from a
school food service facility, the applicable requirements of this part
shall be embodied in a written agreement between the sponsor and the
school.
(2) Upon approval of its application or any adjustment in the
approved levels of meal service for its sites established under
Sec. 225.6(d)(2), vended sponsors shall inform their food service
management company of the approved level at each site for which the food
service management company will provide meals.
(3) Sponsors shall plan for and prepare or order meals on the basis
of participation trends with the objective of providing only one meal
per child at each meal service. The sponsor shall make the adjustments
necessary to achieve this objective using the results from its
monitoring of sites. For sites for which approved levels of meal service
have been established in accordance with Sec. 225.6(d)(2), the sponsor
shall adjust the number of meals ordered or prepared with the objective
of providing only one meal per child whenever the number of children
attending the site is below the approved level. The sponsor shall not
order or prepare meals for children at any site in excess of the site's
approved level, but may order or prepare meals above the approved level
if the meals are to be served to adults performing necessary food
service labor in accordance with Sec. 225.9(d)(4). Records of
participation and of preparation or ordering of meals shall be
maintained to demonstrate positive action toward meeting this objective.
(4) In recognition of the fluctuation in participation levels which
makes it difficult to estimate precisely the number of meals needed and
to reduce the resultant waste, sponsors may claim reimbursement for a
number of second meals which does not exceed two percent of the number
of first meals served to children for each meal type
[[Page 161]]
(i.e., breakfasts, lunches, supplements, or suppers) during the claiming
period. The State agency shall disallow all claims for second meals if
it determines that the sponsor failed to plan and prepare or order meals
with the objective of providing only one meal per child at each meal
service. Second meals shall be served only after all participating
children at the site's meal service have been served a meal.
(c) Records and claims. (1) Sponsors shall maintain accurate records
which justify all costs and meals claimed. Failure to maintain such
records may be grounds for denial of reimbursement for meals served and/
or administrative costs claimed during the period covered by the records
in question. The sponsor's records shall be available at all times for
inspection and audit by representatives of the Secretary, the
Comptroller General of the United States, and the State agency for a
period of three years following the date of submission of the final
claim for reimbursement for the fiscal year.
(2) Sponsors shall submit claims for reimbursement in accordance
with this part. All final claims must be submitted to the State agency
within 60 days following the last day of the month covered by the claim.
(d) Training and monitoring. (1) Each sponsor shall hold Program
training sessions for its administrative and site personnel and shall
allow no site to operate until personnel have attended at least one of
these training sessions. The State agency may waive these training
requirements for operation of the Program during unanticipated school
closures during the period from October through April (or at any time of
the year in an area with a continuous school calendar). Training of site
personnel shall, at a minimum, include: the purpose of the Program; site
eligibility; recordkeeping; site operations; meal pattern requirements;
and the duties of a monitor. Each sponsor shall ensure that its
administrative personnel attend State agency training provided to
sponsors, and sponsors shall provide training throughout the summer to
ensure that administrative personnel are thoroughly knowledgeable in all
required areas of Program administration and operation and are provided
with sufficient information to enable them to carry out their Program
responsibilities. Each site shall have present at each meal service at
least one person who has received this training.
(2) Sponsors shall visit each of their sites at least once during
the first week of operation under the Program and shall promptly take
such actions as are necessary to correct any deficiencies.
(3) Sponsors shall review food service operations at each site at
least once during the first four weeks of Program operations, and
thereafter shall maintain a reasonable level of site monitoring.
Sponsors shall complete a monitoring form developed by the State agency
during the conduct of these reviews.
(e) Media Release. Each sponsor shall annually announce in the media
serving the area from which it draws its attendance the availability of
free meals. Camps and other programs not eligible under Sec. 225.2
(paragraph (a) of ``areas in which poor economic conditions exist'')
shall annually announce to all participants the availability of free
meals for eligible children. All media releases issued by camps and
other programs not eligible under Sec. 225.2 (paragraph (a) of ``areas
in which poor economic conditions exist'') shall include: the
Secretary's family-size and income standards for reduced price school
meals labelled ``SFSP Income Eligibility Standards''; a statement that
children who are members of households receiving food stamp, FDPIR, or
TANF benefits are automatically eligible to receive free meal benefits
at eligible program sites; and a statement that meals are available
without regard to race, color, national origin, sex, age, or handicap.
(f) Application for free Program meals.--(1) Purpose of application
form. The application is used to determine the eligibility of children
attending camps and the eligibility of sites that are not open sites as
defined in paragraph (a) of the definition of ``areas in which poor
economic conditions exist'', in Sec. 225.2. In these situations, parents
or guardians of children enrolled in camps or these other sites must be
given application forms to provide information
[[Page 162]]
described in paragraph (f)(2) or (f)(3) of this section, as applicable.
Applications are not necessary if other information sources are
available and can be used to determine eligibility of individual
children in camps or sites.
(2) Application procedures based on household income. The household
member completing the application on behalf of the child enrolled in the
Program must provide the following information:
(i) The names of all children for whom application is made;
(ii) The names of all other household members;
(iii) The social security number of the adult household member who
signs the application or an indication that the household member does
not have a social security number;
(iv) The income received by each household member identified by
source of income;
(v) The signature of an adult household member;
(vi) The date the application is completed and signed.
(3) Application based on the household's receipt of food stamp,
FDPIR, or TANF benefits. Households may apply on the basis of receipt of
food stamp, FDPIR, or TANF benefits by providing the following
information:
(i) The name(s) and food stamp, FDPIR, or TANF case number(s) of the
child(ren) who are enrolled in the Program; and
(ii) The signature of an adult household member.
(4) Information or notices required on application forms.
Application forms or descriptive materials given to households about
applying for free meals must contain the following information:
(i) The family-size and income levels for reduced price school meal
eligibility with an explanation that households with incomes less than
or equal to these values are eligible for free Program meals (Note: The
income levels for free school meal eligibility must not be included on
the application or in other materials given to the household).
(ii) A statement that a child who is a member of a household that
receives food stamp, FDPIR, or TANF benefits is automatically eligible
to receive free meals in the Program;
(iii) A statement that reads, ``In certain cases, foster children
are eligible for free meals regardless of household income. If such
children are living with you and you wish to apply for such meals,
please contact us.'';
(iv) The following statement that provides notice to the household
member whose social security number is disclosed: ``We are required by
the National School Lunch Act in section 9 to ask for a social security
number. Unless a food stamp, FDPIR, or TANF case number is provided for
your child, the application cannot be approved without either the social
security number of the person who signs the application or an indication
that he or she does not have a social security number. The social
security number provided may be used to identify the person in checking
the correctness of the information provided on the application. This may
occur during reviews, audits or investigations of the Program, and it
may involve contacting employers to determine income. It also may
involve contacting the food stamp or welfare office to determine if your
household is receiving benefits. It may be necessary to check with the
State employment security office to determine the amount of benefits
your household is receiving. Other income information provided by you
may be checked. If the information you provide is incorrect, your
household may lose benefits and/or claims or legal action may be taken
against your household.''
(v) The statement used to inform the household about the use of
social security numbers must comply with the Privacy Act of 1974 (Pub.
L. 93-579). If a State or local agency plans to use the social security
numbers for uses not described in paragraph (f)(4)(iv) of this section,
the notice must be revised to explain those uses.
(vi) Examples of income that should be provided on the application,
including: Earnings, wages, welfare benefits, pensions, support
payments, unemployment compensation, social security, and other cash
income;
(vii) A notice placed immediately below the signature block stating
that
[[Page 163]]
the person signing the application certifies that all information
provided is correct, that the household is applying for Federal benefits
in the form of free Program meals, that Program officials may verify the
information on the application, and that purposely providing untrue or
misleading statements may result in prosecution under State or Federal
criminal laws; and
(viii) A statement that if food stamp, FDPIR, or TANF case numbers
are provided, they may be used to verify the current food stamp, FDPIR,
or TANF certification for the children for whom free meals benefits are
claimed.
(5) Verifying information on Program applications. Households
selected to verify information on their Program applications must be
notified in writing. State agencies must ensure that the notice of
information about the use of social security numbers provided on
applications complies with section 7 of Pub. L. 93-579 (Privacy Act of
1974). Households must be informed of the following:
(i) They must provide a social security number for each adult
household member, or indicate that an adult household member does not
have a social security number, or provide proof that they are receiving
food stamp, FDPIR, or TANF benefits;
(ii) They will lose Program benefits or be terminated from
participation if they do not cooperate with the verification process;
(iii) Social security numbers may be used to determine the
correctness of information on applications and continued eligibility for
Program benefits;
(iv) They will be given the name and phone number of an official who
can assist in the verification process;
(v) Verification may occur during program reviews, audits, and
investigations;
(vi) Verification may include contacting employers, food stamp or
welfare offices, or State employment offices to determine the accuracy
of statements on the application about income, receipt of food stamp,
FDPIR, TANF, or unemployment benefits; and
(vii) They may lose benefits or face claims or legal action if
incorrect information is reported on the application.
(g) Food service management companies. (1) Failure by a sponsor to
comply with the provisions of this section shall be sufficient grounds
for the State agency to terminate that sponsor's participation in
accordance with Sec. 225.18.
(2) Any sponsor may contract with a food service management company
to manage the sponsor's food service operations and/or for the
preparation of unitized meals with or without milk or juice. Exceptions
to the unitizing requirement may only be made in accordance with the
provisions set forth at Sec. 225.6(h)(3).
(3) Any vended sponsor shall be responsible for ensuring that its
food service operation is in conformity with its agreement with the
State agency and with all the applicable provisions of this part.
(4) In addition to any applicable State or local laws governing bid
procedures, and with the exceptions identified in this paragraph, each
sponsor which contracts with a food service management company shall
comply with the competitive bid procedures described in this paragraph.
Sponsors which are schools or school food authorities and which have an
exclusive contract with a food service management company for year-round
service, and sponsors whose total contracts with food service management
companies will not exceed $10,000, shall not be required to comply with
these procedures. These exceptions do not relieve the sponsor of the
responsibility to ensure that competitive procurement procedures are
followed in contracting with any food service management company. Each
sponsor whose proposed contract is subject to the specific bid
procedures set forth in this paragraph shall ensure, at a minimum, that:
(i) All proposed contracts are publicly announced at least once, not
less than 14 calendar days prior to the opening of bids, and the
announcement includes the time and place of the bid opening;
(ii) The bids are publicly opened;
(iii) The State agency is notified, at least 14 calendar days prior
to the opening of the bids, of the time and place of the bid opening;
[[Page 164]]
(iv) The invitation to bid does not specify a minimum price;
(v) The invitation to bid contains a cycle menu approved by the
State agency upon which the bid is based;
(vi) The invitation to bid contains food specifications and meal
quality standards approved by the State agency upon which the bid is
based;
(vii) The invitation to bid does not specify special meal
requirements to meet ethnic or religious needs unless such special
requirements are necessary to meet the needs of the children to be
served;
(viii) Neither the invitation to bid nor the contract provides for
loans or any other monetary benefit or term or condition to be made to
sponsors by food service management companies;
(ix) Nonfood items are excluded from the invitation to bid, except
where such items are essential to the conduct of the food service;
(x) Copies of all contracts between sponsors and food service
management companies, along with a certification of independent price
determination, are submitted to the State agency prior to the beginning
of Program operations;
(xi) Copies of all bids received are submitted to the State agency,
along with the sponsor's reason for choosing the successful bidder; and
(xii) All bids in an amount which exceeds the lowest bid and all
bids totaling $100,000 or more are submitted to the State agency for
approval before acceptance. State agencies shall respond to a request
for approval of such bids within 5 working days of receipt.
(5) Each food service management company which submits a bid over
$100,000 shall obtain a bid bond in an amount not less than five (5)
percent nor more than ten (10) percent, as determined by the sponsor, of
the value of the contract for which the bid is made. A copy of the bid
bond shall accompany each bid.
(6) Each food service management company which enters into a food
service contract for over $100,000 with a sponsor shall obtain a
performance bond in an amount not less than ten (10) percent nor more
than twenty-five (25) percent of the value of the contract, as
determined by the State agency, of the value of the contract for which
the bid is made. Any food service management company which enters into
more than one contract with any one sponsor shall obtain a performance
bond covering all contracts if the aggregate amount of the contracts
exceeds $100,000. Sponsors shall require the food service management
company to furnish a copy of the performance bond within ten days of the
awarding of the contract.
(7) Food service management companies shall obtain bid bonds and
performance bonds only from surety companies listed in the current
Department of the Treasury Circular 570. No sponsor or State agency
shall allow food service management companies to post any
``alternative'' forms of bid or performance bonds, including but not
limited to cash, certified checks, letters of credit, or escrow
accounts.
(h) Other responsibilities. Sponsors shall comply with all of the
meal service requirements set forth in Sec. 225.16.
[54 FR 18208, Apr. 27, 1989, as amended at 55 FR 13470, Apr. 10, 1990;
61 FR 25553, May 22, 1996; 64 FR 72486, Dec. 28, 1999; 64 FR 72898, Dec.
29, 1999]
Effective Date Note 1: At 64 FR 72486, Dec. 28, 1999, Sec. 225.15
was amended by removing the second sentence and by adding in its place
two new sentences in paragraph (a)(2); by removing ``food stamp
households or AFDC assistance units'' and adding in its place
``households receiving food stamp, FDPIR, or TANF benefits'' in
paragraph (e); by revising paragraph (f); by removing paragraph (g)(2)
and redesignating paragraphs (g)(3) through (g)(8) as paragraphs (g)(2)
through (g)(7), respectively; by removing the words ``except a private
nonprofit organization'' in the first sentence in paragraph (g)(2); by
removing newly redesignated paragraph (g)(4)(x) and redesignating newly
redesignated paragraphs (g)(4)(xi) through (g)(4)(xiii) as paragraphs
(g)(4)(x) through (g)(4)(xii), respectively, effective Jan. 27, 2000.
For the convenience of the user, the superseded text follows.
Sec. 225.15 Management responsibilities of sponsors.
(a) * * *
(2) * * * In addition, sponsors administering homeless feeding sites
shall ensure that, if such sites receive commodities as a ``charitable
institution'' pursuant to part 250 of this chapter (Secs. 250.3 and
250.41) during their participation in the Program, the site's records
establish that its allotment of
[[Page 165]]
FDCIP commodities was based only on the number of eligible adult meals
served, while the site's SFSP commodity allotment was based only on the
number of eligible children's meals served. * * *
* * * * *
(f) Application for free Program meals. (1) For the purpose of
determining eligibility for free Program meals, camps and other programs
not eligible under Sec. 225.2 (paragraph (a) of ``areas in which poor
economic conditions exist'') shall distribute applications for meals to
parents or guardians of children enrolled in the program. The
application, and any other descriptive material distributed to such
persons, shall contain only the family-size and income levels for
reduced price school meal eligibility with an explanation that
households with incomes less than or equal to these values are eligible
for free Program meals. Such forms and descriptive material may not
contain the income standards for free meals in the National School Lunch
or School Breakfast Programs. In addition, such forms and materials
shall state that, if a child is a member of a food stamp household or an
AFDC assistance unit, the child is automatically eligible to receive
free program meal benefits, subject to completion of the application as
described in paragraph (f)(3) of this section.
(2) Except as provided in paragraph (f)(3) of this section, the
application shall contain a request for the following information: (i)
The names of all children for whom application is made; (ii) the names
of all other household members; (iii) the social security number of the
adult household member who signs the application, or an indication that
he/she does not possess a social security number; (iv) the income
received by each household member, identified by source of income (such
as earnings, wages, welfare, pensions, support payments, unemployment
compensation, social security, and other cash income); (v) a statement
to the effect that, ``In certain cases, foster children are eligible for
free meals regardless of household income. If such children are living
with you and you wish to apply for such meals, please contact us''; (vi)
a statement which includes substantially the following information:
``Section 9 of the National School Lunch Act requires that, unless a
food stamp or AFDC case number is provided for your child, you must
include the social security number of the adult household member signing
the application, or indicate that the household member does not have a
social security number. Provision of a social security number is not
mandatory, but if a social security number is not provided or an
indication is not made that the signer does not have a social security
number, the application cannot be approved. This notice must be brought
to the attention of the household member whose social security number is
disclosed. The social security number may be used to identify the
household member in carrying out efforts to verify the correctness of
information stated on the application. These verification efforts may be
carried out through program reviews, audits and investigations and may
include contacting employers to determine income; contacting a food
stamp or welfare office to determine current certification for receipt
of food stamp or AFDC benefits; contacting the State employment security
office to determine the amount of benefits received; and checking the
documentation produced by household members to prove the amount of
income received. These efforts may result in loss of benefits,
administrative claims, or legal action if incorrect information is
reported.'' State agencies and sponsors shall ensure that the notice
complies with section 7 of Pub. L. 93-579 (Privacy Act of 1974). If a
State or local agency plans to use the social security numbers in a
manner not described by this notice, the notice shall be altered to
include a description of these uses. The sponsor shall take the income
information provided by the household on the application and calculate
the household's total current income; and (vii) the signature of an
adult member of the household immediately below a statement that the
person signing the application certifies that all information furnished
is true and correct; that the application is being made in connection
with the receipt of Federal funds; that program officials may verify the
information on the application; and that the deliberate
misrepresentation of any of the information on the application may
subject the applicant to prosecution under applicable State and Federal
criminal statutes.
(3) If they so desire, households applying on behalf of children who
are members of food stamp households or AFDC assistance units may apply
for free meal benefits using the procedures described in this paragraph
rather than the procedures described in paragraph (f)(2) of this
section. In accordance with paragraph (f)(2)(vi) of this section, if a
food stamp or AFDC case number is provided, it may be used to verify the
current food stamp or AFDC certification for the child(ren) for whom
free meal benefits are being claimed. Whenever households applying for
benefits for children not receiving food stamp or AFDC benefits, they
must apply for those children in accordance with the requirements set
forth in paragraph (f)(2) of this section. Households applying on behalf
of children who are members of food stamp households or AFDC assistance
units shall be required to provide:
(i) The name(s) and food stamp or AFDC case number(s) of the
child(ren) for whom automatic free meal eligibility is claimed; and
[[Page 166]]
(ii) The signature of an adult member of the household below the
statement described in paragraph (f)(2)(vii) of this section.
(4) Households selected to provide verification shall provide a
social security number for each adult household member or an indication
that such member does not have one. The notice to households of
selection for verification shall include the following:
(i) Section 9 of the National School Lunch requires that unless the
child's food stamp or AFDC case number is provided, households selected
for verification must provide the social security number of each adult
household member;
(ii) In lieu of providing a social security number, an adult
household member may indicate that he/she does not possess one;
(iii) Provision of a social security number is not mandatory but if
a social security number is not provided for each adult household member
or an indication is not made that he/she does not possess one, benefits
will be terminated;
(iv) The social security number may be used to identify household
members in carrying out efforts to verify the correctness of information
stated on the application and continued eligibility for the program.
These verification efforts may be carried out through program reviews,
audits, and investigations and may include contacting employers to
determine income, contacting a food stamp or welfare office to determine
current certification for receipt of food stamps or AFDC benefits,
contacting the State employment security office to determine the amount
of benefits received and checking the documentation produced by
household members to prove the amount of income received. These efforts
may result in loss or reduction of benefits, administrative claims or
legal actions if incorrect information was reported; and
(v) This information must be provided to the attention of each adult
household member disclosing his/her social security number. State
agencies shall ensure that the notice complies with section 7 of Pub. L.
93-579 (Privacy Act of 1974). These households shall be provided with
the name and phone number of an official who can assist in the
verification effort. Selected households shall also be informed that, in
lieu of any information that would otherwise be required, they can
submit proof of current food stamp or AFDC Program certification as
described in paragraph (f)(3) of this section to verify the free meal
eligibility of a child who is a member of a food stamp household or AFDC
assistance unit. All households selected for verification shall be
advised that failure to cooperate with verification efforts will result
in the termination of benefits.
* * * * *
(g) * * *
(2) A sponsor may contract only with a food service management
company which is registered with the State in which the sponsor will
operate the Program, unless the food service management company is not
required to register in accordance with Sec. 225.6(g)(9).
* * * * *
(g) * * *
(4) * * *
(x) A copy of the food service management company registration
determination issued by the State agency is submitted by the food
service management company with its bid;
* * * * *
Effective Date Note 2: At 64 FR 72898, Dec. 29, 1999, Sec. 225.15
was amended by adding a new sentence after the first sentence of
paragraph (d)(1), effective Feb. 28, 2000.
Sec. 225.16 Meal service requirements.
(a) Sanitation. Sponsors shall ensure that in storing, preparing,
and serving food, proper sanitation and health standards are met which
conform with all applicable State and local laws and regulations.
Sponsors shall ensure that adequate facilities are available to store
food or hold meals. Within two weeks of receiving notification of their
approval, but in any case prior to commencement of Program operation,
sponsors shall submit to the State agency a copy of their letter
advising the appropriate health department of their intention to provide
a food service during a specific period at specific sites.
(b) Meal services. The meals which may be served under the Program
are breakfast, lunch, supper, and supplements, referred to from this
point as ``snacks''. No sponsor may be approved to provide more than two
snacks per day. A sponsor may only be reimbursed for meals served in
accordance with this section.
(1) Camps. Sponsors of camps shall only be reimbursed for meals
served in camps to children from families which meet the eligibility
standards for this Program. The sponsor shall maintain a
[[Page 167]]
copy of the documentation establishing the eligibility of each child
receiving meals under the Program. Meal service at camps shall be
subject to the following provisions:
(i) Each day a camp may serve up to three meals or two meals and one
snack;
(ii) Residential camps are not subject to the time restrictions for
meal service set forth at paragraphs (c) (1) and (2) of this section;
and
(iii) A camp shall be approved to serve these meals only if it has
the administrative capability to do so; if the service period of the
different meals does not coincide or overlap; and, where applicable, if
it has adequate food preparation and holding facilities.
(2) NYSP Sites. Sponsors of NYSP sites shall only be reimbursed for
meals served to enrolled NYSP participants at these sites.
(3) Restrictions on the number and type of meals served. Food
service sites other than camps and sites that primarily serve migrant
children may serve either:
(i) One meal each day, a breakfast, a lunch, or snack; or
(ii) Two meals each day, if one is a lunch and the other is a
breakfast or a snack.
(4) Sites which serve children of migrant families. Food service
sites that primarily serve children from migrant families may be
approved to serve each day up to three meals or two meals and one snack.
These sites shall serve children in areas where poor economic conditions
exist as defined in Sec. 225.2. A sponsor which operates in accordance
with this part shall receive reimbursement for all meals served to
children at these sites. A site which primarily serves children from
migrant families shall only be approved to serve more than one meal each
day if it has the administrative capability to do so; if the service
period of the different meals does not coincide or overlap; and, where
applicable, if it has adequate food preparation and holding facilities.
(c) Time restrictions for meal service. (1) Three hours must elapse
between the beginning of one meal service, including snacks, and the
beginning of another, except that 4 hours must elapse between the
service of a lunch and supper when no snack is served between lunch and
supper. The service of supper shall begin no later than 7 p.m., unless
the State agency has granted a waiver of this requirement due to
extenuating circumstances. These waivers shall be granted only when the
State agency and the sponsor ensure that special arrangements shall be
made to monitor these sites. In no case may the service of supper extend
beyond 8 p.m. The time restrictions in this paragraph shall not apply to
residential camps.
(2) The duration of the meal service shall be limited to two hours
for lunch or supper and one hour for all other meals.
(3) Meals served outside of the period of approved meal service
shall not be eligible for Program payments.
(4) Any permanent or planned changes in meal service periods must be
approved by the State agency.
(5) Meals which are not prepared at the food service site shall be
delivered no earlier than one hour prior to the beginning of the meal
service (unless the site has adequate facilities for holding hot or cold
meals within the temperatures required by State or local health
regulations) and no later than the beginning of the meal service.
(6) The sponsor shall claim for reimbursement only the type(s) of
meals for which it is approved under its agreement with the State
agency.
(d) Meal patterns. The meal requirements for the Program are
designed to provide nutritious and well-balanced meals to each child.
Sponsors shall ensure that meals served meet all of the requirements.
Except as otherwise provided in this section, the following tables
present the minimum requirements for meals served to children in the
Program. Children age 12 and up may be served larger portions based on
the greater food needs of older boys and girls.
Breakfast
(1) The minimum amount of food components to be served as breakfast
are as follows:
------------------------------------------------------------------------
Food components Minimum amount
------------------------------------------------------------------------
Vegetables and Fruits
------------------------------------------------------------------------
Vegetable(s) and/or fruit(s)........... \1/2\ cup.1
[[Page 168]]
or
Full-strength vegetable or fruit juice \1/2\ cup (4 fl. oz.)
or an equivalent quantity of any
combination of vegetable(s), fruit(s),
and juice.
------------------------------------------------------------------------
Bread and Bread Alternates 2
------------------------------------------------------------------------
Bread.................................. 1 slice.
or
Cornbread, biscuits, rolls, muffins, 1 serving.3
etc.
or
Cold dry cereal........................ \3/4\ cup or 1 oz.4
or
Cooked cereal or cereal grains......... \1/2\ cup.
or
Cooked pasta or noodle products or an \1/2\ cup.
equivalent quantity of any combination
of bread/bread alternate.
------------------------------------------------------------------------
Milk 5
------------------------------------------------------------------------
Milk, fluid............................ 1 cup (\1/2\ pint, 8 fl. oz.)
------------------------------------------------------------------------
Meat and Meat Alternates (Optional)
------------------------------------------------------------------------
Lean meat or poultry or fish........... 1 oz.
or
Cheese................................. 1 oz.
or
Eggs................................... \1/2\ large egg.
or
Cooked dry beans or peas............... \1/2\ cup.
or
Peanut butter or an equivalent quantity 2 tbsp.
of any combination of meat/meat
alternate.
or
Yogurt, plain or flavored, unsweetened 4 oz. or \1/2\ cup.
or sweetened.
------------------------------------------------------------------------
\1\ For the purposes of the requirement outlined in this table, a cup
means a standard measuring cup.
\2\ Bread, pasta or noodle products, and cereal grains (such as rice,
bulgur, or corn grits) shall be whole-grain or enriched; cornbread,
biscuits, rolls, muffins, etc., shall be made with whole-grain or
enriched meal or flour; cereal shall be whole-grain, enriched or
fortified.
\3\ Serving sizes and equivalents will be in guidance materials to be
distributed by FNS to State agencies.
\4\ Either volume (cup) or weight (oz.), whichever is less.
\5\ Milk shall be served as a beverage or on cereal, or used in part for
each purpose.
Lunch or Supper
(2) The minimum amounts of food components to be served as lunch or
supper are as follows:
------------------------------------------------------------------------
Food components Minimum amount
------------------------------------------------------------------------
Meat and Meat Alternates
------------------------------------------------------------------------
Lean meat or poultry or fish........... 2 oz.
or
Cheese................................. 2 oz.
or
Eggs................................... 1 large egg
or
Cooked dry beans or peas............... \1/2\ cup 1
or
Peanut butter or soynut butter or other 4 tbsp.
nut or seed butters.
or
Peanuts or soynuts or tree nuts or seed 1 oz. =50% 32.
or
Yogurt, plain or flavored, unsweetened 8 oz. or 1 cup.
or sweetened.
or
An equivalent quantity of any
combination of the above meat/meat
alternates.
------------------------------------------------------------------------
Vegetables and Fruit
------------------------------------------------------------------------
Vegetable(s) and/or fruit(s) 4......... \3/4\ cup total
------------------------------------------------------------------------
Bread and Bread Alternates 5
------------------------------------------------------------------------
Bread.................................. 1 slice
or
Cornbread, biscuits, rolls, muffins, 1 serving 6
etc.
or
Cooked pasta or noodle products........ \1/2\ cup
or
Cooked cereal grains or an equivalent \1/2\ cup
quantity of any combination of bread/
bread alternate.
------------------------------------------------------------------------
Milk
------------------------------------------------------------------------
Milk, fluid, served as a beverage...... 1 cup (\1/2\ pint, 8 fl. oz.)
------------------------------------------------------------------------
\1\ For purposes of the requirements outlined in the table, a cup means
a standard measuring cup.
\2\ Tree nuts and seeds that may be used as meat alternates are listed
in program guidance.
\3\ No more than 50% of the requirement shall be met with nuts or seeds.
Nuts or seeds shall be combined with another meat/meat alternate to
fulfill the requirement. For purposes of determining combinations, 1
oz. of nuts or seeds is equal to 1 oz. of cooked lean meat, poultry or
fish.
\4\ Serve 2 or more kinds of vegetable(s) and or fruit(s) or a
combination of both. Full strength vegetable or fruit juice may be
counted to meet not more than one-half of this requirement.
\5\ Bread, pasta or noodle products, and cereal grains (such as rice,
bulgur, or corn grits) shall be whole-grain or enriched; cornbread,
biscuits, rolls, muffins, etc., shall be made with whole-grain or
enriched meal or flour; cereal shall be whole-grain or enriched or
fortified.
\6\ Serving sizes and equivalents will be in guidance materials to be
distributed by FNS to State agencies.
[[Page 169]]
Snacks
(3) The minimum amounts of food components to be served as snacks
are as follows. Select one of the following four components. (Juice may
not be served when milk is served as the only other component.)
------------------------------------------------------------------------
Food components Minimum amount
------------------------------------------------------------------------
Meat and Meat Alternates
------------------------------------------------------------------------
Lean meat or poultry or fish........... 1 oz.
or
Cheese................................. 1 oz.
or
Eggs................................... \1/2\ large egg.
or
Cooked dry beans or peas............... \1/4\ cup .\1\
or
Peanut butter or soynut butter or other 2 tbsp.
nut or seed butters.
or
Peanuts or soynuts or tree nuts or 1 oz.
seeds.\2\.
or
Yogurt, plain, or sweetened and 4 oz. or \1/2\ cup.
flavored.
An equivalent quantity of any
combination of the above meat/meat
alternates.
------------------------------------------------------------------------
Vegetables and Fruits
------------------------------------------------------------------------
Vegetable(s) and/or fruit(s)........... \3/4\ cup.
or
Full-strength vegetable or fruit juice \3/4\ cup (6 fl. oz.).
or an equivalent quantity of any
combination of vegetable(s), fruit(s)
and juice.
------------------------------------------------------------------------
Bread and Bread Alternates \3\
------------------------------------------------------------------------
Bread.................................. 1 slice.
or
Cornbread, biscuits, rolls, muffins, 1 serving \4\.
etc.
or
Cold dry cereal........................ \3/4\ cup or 1 oz.\5\
or
Cooked cereal.......................... \1/2\ cup.
or
Cooked cereal grains or an equivalent \1/2\ cup.
quantity of any combination of bread/
bread alternate.
------------------------------------------------------------------------
Milk \6\
------------------------------------------------------------------------
Milk, fluid............................ 1 cup (\1/2\ pint, 8 fl. oz.)
------------------------------------------------------------------------
\1\ For purposes of the requirements outlined in this table, a cup means
a standard measuring cup.
\2\ Tree nuts and seeds that may be used as meat alternates are listed
in program guidance.
\3\ Bread, pasta or noodle products, and cereal grains (such as rice,
bulgur, or corn grits) shall be whole-grain or enriched; cornbread,
biscuits, rolls, muffins, etc. shall be made with whole-grain or
enriched meal or flour; cereal shall be whole-grain or enriched or
fortified.
\4\ Serving sizes and equivalents will be in guidance materials to be
distributed by FNS to State agencies.
\5\ Either volume (cup) or weight (oz.), whichever is less.
\6\ Milk should be served as a beverage or on cereal, or used in part
for each purpose.
(e) Meat or meat alternate. Meat or meat alternates served under the
Program are subject to the following requirements and recommendations.
(1) The required quantity of meat or meat alternate shall be the
quantity of the edible portion as served. These foods must be served in
a main dish, or in a main dish and one other menu item.
(2) Cooked dry beans or peas may be used as a meat alternate or as a
vegetable, but they may not be used to meet both component requirements
in a meal.
(3) Textured vegetable protein products and enriched macaroni with
fortified protein may be used to meet part, but not all, of the meat/
meat alternate requirement. The Department will provide guidance to
State agencies on the part of the meat/meat alternate requirement which
these foods may be used to meet. If enriched macaroni with fortified
protein is served as a meat alternate it shall not be counted toward the
bread requirement.
(4) If the sponsor believes that the recommended portion size of any
meat or meat alternate is too large to be appealing to children, the
sponsor may reduce the portion size of that meat or meat alternate and
supplement it with another meat or meat alternate to meet the full
requirement.
(5) Nuts and seeds and their butters listed in program guidance are
nutritionally comparable to meat or other meat alternates based on
available nutritional data. Acorns, chestnuts, and coconuts shall not be
used as meat alternates due to their low protein content. Nut and seed
meals or flours shall not be used as a meat alternate except as defined
in this section under paragraph (e)(3) and in this part under Appendix
A: Alternate Foods for Meals. As noted in paragraph (d)(2) of this
section, nuts or seeds may be used to meet no more than one-half of the
meat/meat alternate requirement for lunch
[[Page 170]]
or supper. Therefore, nuts or seeds must be combined with another meat/
meat alternate to fulfill the requirement. For the supplemental food
pattern, nuts or seeds may be used to fulfill all of the meat/meat
alternate requirement.
(f) Exceptions to and variations from the meal pattern.--(1) Meals
provided by school food authorities.--(i) Meal pattern substitution.
School food authorities that are Program sponsors and that participate
in the National School Lunch or School Breakfast Program during any time
of the year may substitute the meal pattern requirements of the
regulations governing those programs (Parts 210 and 220 of this chapter,
respectively) for the meal pattern requirements in this section.
(ii) Offer versus serve. School food authorities that are Program
sponsors may permit a child to refuse one or more items that the child
does not intend to eat. The school food authority must apply this
``offer versus serve'' option under the rules followed for the National
School Lunch Program, as described in part 210 of this chapter. The
reimbursements to school food authorities for Program meals served under
the ``offer versus serve'' must not be reduced because children choose
not to take all components of the meals that are offered.
(2) Children under 6. The State agency may authorize the sponsor to
serve food in smaller quantities than are indicated in paragraph (d) of
this section to children under six years of age if the sponsor has the
capability to ensure that variations in portion size are in accordance
with the age levels of the children served. Sponsors wishing to serve
children under one year of age shall first receive approval to do so
from the State agency. In both cases, the sponsor shall follow the age-
appropriate meal pattern requirements contained in the Child and Adult
Care Food Program regulations (7 CFR part 226).
(3) Statewide substitutions. In American Samoa, Puerto Rico, Guam,
the Virgin Islands, the Trust Territory of the Pacific Islands, and the
Northern Mariana Islands, the following variations from the meal
requirements are authorized: A serving of a starchy vegetable--such as
ufi, tanniers, yams, plantains, or sweet potatoes--may be substituted
for the bread requirements.
(4) Individual substitutions. Substitutions may be made by sponsors
in food listed in paragraph (d) of this section if individual
participating children are unable, because of medical or other special
dietary needs, to consume such foods. Such substitutions shall be made
only when supported by a statement from a recognized medical authority
which includes recommended alternate foods. Such statement shall be kept
on file by the sponsor.
(5) Special variations. FNS may approve variations in the food
components of the meals on an experimental or a continuing basis for any
sponsor where there is evidence that such variations are nutritionally
sound and are necessary to meet ethnic, religious, economic, or physical
needs.
(6) Temporary unavailability of milk. If emergency conditions
prevent a sponsor normally having a supply of milk from temporarily
obtaining milk deliveries, the State agency may approve the service of
breakfasts, lunches or suppers without milk during the emergency period.
(7) Continuing unavailability of milk. The inability of a sponsor to
obtain a supply of milk on a continuing basis shall not bar it from
participation in the Program. In such cases, the State agency may
approve service of meals without milk, provided that an equivalent
amount of canned, whole dry or nonfat dry milk is used in the
preparation of the milk components set forth in paragraph (d) of this
section. In addition, the State agency may approve the use of nonfat dry
milk in meals served to children participating in activities which make
the service of fluid milk impracticable, and in locations which are
unable to obtain fluid milk. Such authorization shall stipulate that
nonfat dry milk be reconstituted at normal dilution and under sanitary
conditions consistent with State and local health regulations.
[[Page 171]]
(8) Additional foods. To improve the nutrition of participating
children, additional foods may be served with each meal.
[54 FR 18208, Apr. 27, 1989, as amended at 54 FR 27153, June 28, 1989;
Amdt. 2, 55 FR 1377, Jan. 14, 1990; 55 FR 13470, Apr. 10, 1990; 61 FR
37672, July 19, 1996; 62 FR 10191, Mar. 6, 1997; 64 FR 72487, Dec. 28,
1999; 64 FR 72487, Dec. 28, 1999]
Effective Date Note: At 64 FR 72487, Dec. 28, 1999, Sec. 225.16 was
amended by revising paragraph (b) introductory text and paragraph
(b)(1)(i); by removing paragraph (b)(2); by redesignating paragraphs
(b)(3), (b)(4), and (b)(5) as (b)(2), (b)(3), and (b)(4), respectively
and revising these newly redesigated paragraphs (b)(2), (b)(3), and
(b)(4); by revising the first sentence of paragraph (c)(1); by adding a
sentence at the end of paragraph (d)(1) introductory text; by revising
the entry for ``Eggs'' in the table under ``Meat and Meat Alternates
(Optional) in paragraph (d)(1); by revising paragraph (d)(2)
introductory text; by revising the center heading, introductory text and
the entry for ``Eggs'' in the table under ``Meat and Meat Alternates''
in paragraph (d)(3); by removing paragraph (e) and redesignating
paragraphs (f) and (g) as paragraphs (e) and (f), respectively, and by
revising newly redesignated paragraph (f)(1), effective Jan. 27, 2000.
For the convenience of the user, the superseded text follows.
Sec. 225.16 Meal service requirements.
* * * * *
(b) Meal Services. The meals which may be served under the Program
are breakfast, lunch, supper, and supplemental food. No sponsor shall be
approved to provide more than two services of supplemental food per day.
A sponsor shall only be reimbursed for meals served in accordance with
this section.
(1) * * *
(i) A camp may serve up to four meals each day;
* * * * *
(2) Homeless Feeding Sites. Sponsors of homeless feeding sites shall
ensure that the site's primary purpose is to provide shelter and meals
to homeless families and that such sites claim reimbursement only for
meals served to homeless and non-homeless children. Homeless feeding
sites are not subject to the time restrictions for meal service set
forth at paragraphs (c)(1)-(3) of this section.
* * * * *
(3) NYSP Sites. Sponsors of NYSP sites shall only be reimbursed for
meals served to enrolled NYSP participants at these sites. NYSP sites
participating in the Program during the months of October through April
shall claim reimbursement for no more than two meals or one meal and one
supplement per day for not more than 30 days of meal service.
(4) Restrictions on the number and type of meals served. Food
service sites other than camps, NYSP sites operation during the months
of October through April, and sites which primarily serve migrant
children may serve either: (i) One meal each day, a breakfast, a lunch,
or supplement; or (ii) two meals each day, if one is a lunch and the
other is a breakfast or a supplement.
(5) Sites which serve children of migrant families. Food service
sites which primarily serve children from migrant families may be
approved to serve up to four meals each day. * * *
* * * * *
(c) * * * (1) Three hours shall elapse between the beginning of one
meal service, including supplements, and the beginning of another,
except that 4 hours shall elapse between the service of a lunch and
supper when no supplement is served between lunch and supper.
* * * * *
(d) * * * (1) Except in the case of NYSP sponsors participating
during the months of October through April, children age 12 and up may
be served adult-size portions based on the greater food needs of older
boys and girls, but shall be served not less than the minimum quantities
specified in this section. The minimum amount of food components to be
served as breakfast are as follows:
------------------------------------------------------------------------
Food components Minimum amount
------------------------------------------------------------------------
* * * * *
Meat and Meat Alternates (Optional)
* * * * *
Eggs...................................... 1 large egg.
* * * * *
------------------------------------------------------------------------
* * * * *
(3) Except in the case of NYSP sponsors participating during the
months of October through April, the minimum amounts of food components
to be served as supplemental food are as follows. Select two of the
following four components. (Juice may not be served when milk is served
as the only other component.)
[[Page 172]]
------------------------------------------------------------------------
Food components Minimum amount
------------------------------------------------------------------------
Meat and Meat Alternates
* * * * *
Eggs...................................... 1 large egg.
* * * * *
------------------------------------------------------------------------
* * * * *
(e) NYSP sponsors participating in the Program during the months of
October through April shall ensure that meals served meet all of the
requirements specified in this paragraph.
(1) At a minimum, a breakfast or a supplement shall contain the
components and quantities specified for breakfasts in 7 CFR part 220,
Sec. 220.8(a)(1)-(2), grades K-12.
(2) At a minimum, a lunch or supper shall contain the components and
quantities specified for lunches in 7 CFR part 210, Sec. 210.10 (c) and
(d), Group IV (age 9 and older) and, when possible, the recommended
quantities for children 12 and older.
(f) * * * (1) Meals prepared in schools. The State agency may allow
sponsors which serve meals prepared in schools participating in the
National School Lunch or School Breakfast Programs to substitute the
meal pattern requirements of the regulations governing those programs (7
CFR part 210 and 7 CFR part 220, respectively) for the meal pattern
requirements contained in this section.
* * * * *
Subpart D--General Administrative Provisions
Sec. 225.17 Procurement standards.
(a) State agencies and sponsors shall comply with the standards
prescribed in the Department's Uniform Federal Assistance Regulations at
7 CFR part 3015, subpart S, in the procurement of food, supplies, goods,
and other services with Program payments.
(b) The State agency shall make available to sponsors information on
7 CFR part 3015.
(c) Sponsors may use their own procurement procedures which reflect
applicable State and local laws and regulations, provided that
procurements made with Program funds conform with provisions of this
section, as well as with procurement requirements which may be
established by the State agency, with approval of FNS, to prevent fraud,
waste, and Program abuse.
(d) The State agency shall ensure that all sponsors are aware of the
following practices specified in 7 CFR part 3015, with respect to
minority business enterprises:
(1) Including qualified minority business enterprises on
solicitation lists,
(2) Soliciting minority business enterprises whenever they are
potential sources,
(3) When economically feasible, dividing total requirements into
smaller tasks or quantities so as to permit maximum participation by
minority business enterprises,
(4) Establishing delivery schedules which will assist minority
business enterprises to meet deadlines, and
(5) Using the services and assistance of the Small Business
Administration, and the Office of Minority Business Enterprise of the
Department of Commerce as required.
Sec. 225.18 Miscellaneous administrative provisions.
(a) Grant closeout procedures. Grant closeout procedures for the
Program shall be in accordance with the Department's Uniform Federal
Assistance Regulations (7 CFR part 3015), subpart N.
(b) Termination for cause. (1) FNS may terminate a State agency's
participation in the Program in whole, or in part, whenever it is
determined that the State agency has failed to comply with the
conditions of the Program. FNS shall promptly notify the State agency in
writing of the termination and reason for the termination, together with
the effective date, and shall allow the State 30 calendar days to
respond. In instances where the State does respond, FNS shall inform the
State of its final determination no later than 30 calendar days after
the State responds.
(2) A State agency shall terminate a sponsor's participation in the
Program by written notice whenever it is determined by the State agency
that the sponsor has failed to comply with the conditions of the
Program.
(3) When participation in the Program has been terminated for cause,
any funds paid to the State agency or a sponsor or any recoveries by FNS
from the State agency or by the State
[[Page 173]]
agency from a sponsor shall be in accordance with the legal rights and
liabilities of the parties.
(c) Termination for convenience. FNS and the State agency may agree
to terminate the State agency's participation in the Program in whole,
or in part, when both parties agree that the continuation of the Program
would not produce beneficial results commensurate with the further
expenditure of funds. The two parties shall agree upon the termination
conditions, including the effective date, and in the case of partial
termination, the portion to be terminated. The State agency shall not
incur new obligations for the terminated portion after the effective
date, and shall cancel as many outstanding obligations as possible. The
Department shall allow full credit to the State agency for the Federal
share of the noncancellable obligation properly incurred by the State
agency prior to termination. A State agency may terminate a sponsor's
participation in the manner provided for in this paragraph.
(d) Maintenance of effort. Expenditure of funds from State and local
sources for the maintenance of food programs for children shall not be
diminished as a result of funds received under the Act and a
certification to this effect shall become part of the agreement provided
for in Sec. 225.3(c).
(e) Program benefits. The value of benefits and assistance available
under the Program shall not be considered as income or resources of
recipients and their families for any purpose under Federal, State or
local laws, including, but not limited to, laws relating to taxation,
welfare, and public assistance programs.
(f) State requirements. Nothing contained in this part shall prevent
a State agency from imposing additional operating requirements which are
not inconsistent with the provisions of this part, provided that such
additional requirements shall not deny the Program to an area in which
poor economic conditions exist, and shall not result in a significant
number of needy children not having access to the Program. Prior to
imposing any additional requirements, the State agency must receive
approval from FNSRO.
(g) Fraud penalty. Whoever embezzles, willfully misapplies, steals,
or obtains by fraud any funds, assets, or property that are the subject
of a grant or other form of assistance under this part, whether received
directly or indirectly from the Department, or whoever receives,
conceals, or retains such funds, assets, or property to his use or gain,
knowing such funds, assets, or property have been embezzled, willfully
misapplied, stolen or obtained by fraud shall, if such funds, assets, or
property are of the value of $100 or more, be fined not more than
$100,000 or imprisoned not more than five years, or both, or if such
funds, assets, or property are of a value of less than $100, shall be
fined not more than $1,000 or imprisoned for not more than one year, or
both.
(h) Claims adjustment authority. The Secretary shall have the
authority to determine the amount of, to settle, and to adjust any claim
arising under the Program, and to compromise or deny such claim or any
part thereof. The Secretary shall also have the authority to waive such
claims if the Secretary determines that to do so would serve the
purposes of the Program. This provision shall not diminish the authority
of the Attorney General of the United States under section 516 of title
28, U.S. Code, to conduct litigation on behalf of the United States.
(i) Special retroactivity provisions. Notwithstanding any other
provisions contained in this part, the following shall apply:
(1) State agencies shall provide reimbursement as set forth in
Sec. 225.9(d)(10) of this part, for meal service provided by any
academic-year NYSP sponsor between October 1, 1989 and the date of the
Fiscal Year 1990 academic-year Program agreement between the State
agency and the academic year NYSP sponsor under the following
conditions, provided that:
(i) The sponsor can document, for any meals claimed that:
(A) The NYSP site participated in the Program during the 1989 SFSP
or, if the site did not participate in the 1989 SFSP, free meal
applications are on file to document the site's eligibility during the
Fiscal Year 1990 academic-year phase of the SFSP;
[[Page 174]]
(B) Meal counts by type (breakfast, lunch, supplement, and supper)
are available;
(C) Food service revenue and expenditure records are sufficient to
support the claim for reimbursement;
(D) Program reimbursement does not duplicate other funding for the
same meals;
(E) The meals claimed for reimbursement met the requirements of the
appropriate meal patterns set forth at Sec. 225.16(e) of this part in
terms of items and quantities served; and
(ii) The Fiscal Year 1990 academic-year Program agreement between
the State agency and the academic-year NYSP sponsor is executed no later
than 90 days after the publication of the 1990 Program regulations; and
any claims for reimbursement for meals served between October 1, 1989
and the date of said Program agreement are grouped by month and are
received by the State agency no later than 30 days after the execution
of the State-sponsor agreement or the date established by
Sec. 225.9(d)(5), whichever date is later.
[54 FR 18208, Apr. 27, 1989, as amended at 55 FR 13471, Apr. 10, 1990;
64 FR 72488, Dec. 28, 1999]
Effective Date Note: At 64 FR 72488, Dec. 28, 1999, Sec. 225.18 was
amended by removing paragraph (i), effective Jan. 27, 2000.
Sec. 225.19 Regional office addresses.
Persons desiring information concerning the Program may write to the
appropriate State agency or Regional Office of FNS as indicated below:
(a) In the States of Connecticut, Maine, Massachusetts, New
Hampshire, New York, Rhode Island, and Vermont: Northeast Regional
Office, FNS, U.S. Department of Agriculture, 10 Causeway Street, Boston,
MA 02222-1065.
(b) In the States of Delaware, District of Columbia, Maryland, New
Jersey, Pennsylvania, Puerto Rico, Virginia, Virgin Islands, and West
Virginia: Mid-Atlantic Regional Office, FNS, U.S. Department of
Agriculture, Corporate Boulevard CN-02150, Trenton, NJ 08650.
(c) In the States of Alabama, Florida, Georgia, Kentucky,
Mississippi, North Carolina, South Carolina, and Tennessee: Southeast
Regional Office, FNS, U.S. Department of Agriculture, 77 Forsyth Street,
SW, Suite 112, Atlanta, GA 30303.
(d) In the States of Illinois, Indiana, Michigan, Minnesota, Ohio
and Wisconsin: Midwest Regional Office, FNS, U.S. Department of
Agriculture, 50 E. Washington Street, Chicago, IL 60602.
(e) In the States of Arkansas, Louisiana, New Mexico, Oklahoma and
Texas: Southwest Regional Office, FNS, U.S. Department of Agriculture,
1100 Commerce Street, Room 5-C-30, Dallas, TX 75242.
(f) In the States of Colorado, Iowa, Kansas, Missouri, Montana,
Nebraska, North Dakota, South Dakota, Utah and Wyoming: Mountain Plains
Regional Office, FNS, U.S. Department of Agriculture, 1244 Speer
Boulevard, Suite 903, Denver, CO 80204.
(g) In the States of Alaska, American Samoa, Arizona, California,
Guam, Hawaii, Idaho, Nevada, Oregon, Trust Territory of the Pacific
Islands, the Northern Mariana Islands, and Washington: Western Regional
Office, FNS, U.S. Department of Agriculture, 550 Kearney Street, Room
400, San Francisco, CA 94108.
[54 FR 18208, Apr. 27, 1989, as amended at 55 FR 13471, Apr. 10, 1990]
Sec. 225.20 Information collection/recordkeeping--OMB assigned control numbers.
------------------------------------------------------------------------
Current OMB
7 CFR section where requirements are described control No.
------------------------------------------------------------------------
225.3-225.4................................................ 0584-0280
225.6-225.10............................................... 0584-0280
225.12-225.13.............................................. 0584-0280
225.15-225.18.............................................. 0584-0280
------------------------------------------------------------------------
[61 FR 25554, May 22, 1996]
Appendix A to Part 225--Alternate Foods for Meals
Vegetable Protein Products
1. Schools, institutions, and service institutions may use a
vegetable protein product, defined in paragraph 2, as a food component
meeting the meal requirements specified in Sec. 210.10, Sec. 225.16 or
Sec. 226.20 under the following terms and conditions:
(a) The vegetable protein product must be prepared in combination
with raw or cooked meat, poulty or seafood and shall resemble, as well
as substitute in part for, one of these major protein foods.
``Substitute'' refers to a vegetable protein product whose presence in
[[Page 175]]
another food results in the presence of a smaller amount of meat,
poultry or seafood than is customarily expected or than appears to be
present in that food. Examples of items in which a vegetable protein
product may be used include, but are not limited to, beef patties, beef
crumbles, pizza topping, meat loaf, meat sauce, taco filling, burritos,
and tuna salad.
(b) Vegetable protein products may be used in the dry form
(nonhydrated), partially hydrated or fully hydrated form in combination
with meat, poultry or seafood. The moisture content of the fully
hydrated vegetable protein product shall be such that the mixture will
have a minimum of 18 percent protein by weight or equivalent amount for
the dry or partially hydrated form (based on the level that would be
provided if the product were fully hydrated).
(c) The quantity, by weight, of the fully hydrated vegetable protein
product must not exceed 30 parts to 70 parts meat, poultry or seafood on
an uncooked basis. The quantity by weight of the dry or partially
hydrated vegetable protein product must not exceed a level equivalent to
the amount (dry weight) used in the fully hydrated product at the 30
percent level of substitution. The dry or partially hydrated product's
replacement of meat, poultry or seafood will be based on the level of
substitution it would provide if it were fully hydrated.
(d) A vegetable protein product may be used to satisfy the meat/meat
alternative requirement when combined with meat, poultry or seafood and
when it meets the other requirements of this section. The combination of
the vegetable protein product and meat, poultry or seafood may meet all
or part of the meat/meat alternate requirement specified in Sec. 210.10,
Sec. 225.16 or Sec. 226.20.
(e) The contribution vegetable protein products make toward the
meat/meat alternate requirement specified in Sec. 210.10, Sec. 225.16,
and Sec. 226.20 shall be determined on the basis of the preparation
yield of the meat, poultry or seafood with which it is combined. When
computing the preparation yield of a product containing meat, poultry or
seafood and vegetable protein product, the vegetable protein product
shall be evaluated as having the same preparation yield that is applied
to the meat, poultry or seafood it replaces.
(f) When vegetable protein products are served in a meal with other
alternate food authorized in appendix A, each individual alternate food
shall be used as specifically directed.
2. A vegetable protein product to be used to resemble, and
substitute in part for, meat, poultry or seafood, as specified in
paragraph 1, must meet the following criteria:
(a) The vegetable protein product (substitute food) shall contain
one or more vegetable protein products which are defined as follows:
(1) Vegetable (plant) protein products are foods which are processed
so that some portion of the nonprotein constituents of the vegetable is
removed. These vegetable protein products are safe and suitable edible
products produced from vegetable (plant) sources including, but not
limited to, soybeans, peanuts, wheat, and corn.
(b) The types of vegetable protein products described in paragraph
2(a)(1) of this appendix shall include flour, concentrate, and isolate
as defined below:
(1) When a product contains less than 65 percent protein by weight
calculated on a moisture-free basis excluding added flavors, colors, or
other added substances it is a ``________ flour'', the blank to be
filled with the name of the source of the protein, e.g., ``soy'' or
``peanut''.
(2) When a product contains 65 percent or more but less than 90
percent protein by weight calculated on a moisture-free basis excluding
added flavors, colors, or other added substances, it is a ``________
protein concentrate'', the blank to be filled with the name of the
source of the protein, e.g., ``soy'' or ``peanut''.
(3) When a product contains 90 percent or more protein by weight
calculated on a moisture-free basis excluding added flavors, colors or
other added substances, it is a ``________ protein isolate'' or
``________ isolated protein,'' the blank to be filled in with the name
of the source of the protein, e.g., ``soy'' or ``peanut''.
(c) Compliance with the moisture and protein provisions of paragraph
2(b) (1), (2), and (3) of this appendix shall be determined by the
appropriate methods described in ``Official Methods of Analysis of the
Association of Official Analytical Chemists'' (14th edition, 1984).
(d) Vegetable protein products which are used to resemble, and
substitute in part for, meat, poultry or seafood shall be labeled in
conformance with the following:
(1) The common or usual names for a vegetable protein product used
to resemble, and substitute in part for, meat, poultry or seafood shall
include the term ``vegetable protein product'' and may include the term
``textured'' or ``texturized'' and/or a term such as ``granules'' when
such term is appropriate. The term ``plant'' may be used in the name in
lieu of the term ``vegetable''; and
(2) The vegetable protein products used as ingredients in the
substitute food shall be listed by source (e.g, soy or peanut) and
product type (e.g., flour, concentrate, isolate) in the ingredient state
of the label. Product type(s) listed shall comply with the appropriate
definition(s) set forth in paragraph 2(b) (1), (2) and (3), and may
include a term which accurately describes the physical form of the
product (e.g., ``granules'') when such term is appropriate.
[[Page 176]]
(e) Vegetable protein products which are used to resemble, and
substitute in part for, meat, poultry or seafood shall meet the
following nutritional specifications:
(1) The biological quality of the protein in the vegetable protein
product shall be at least 80 percent that of casein, such percentage to
be determined by performing a Protein Efficiency Ratio (PER) assay
unless FNS grants an exception to the PER by approving an alternate
test;
(2) The vegetable protein product shall contain at least 18 percent
protein by weight when hydrated or formulated to be used in combination
with meat, poultry or seafood. (``When hydrated or formulated'' refers
to a dry vegetable protein product and the amount of water, fat or oil,
colors, flavors or any other substances which have been added in order
to make the resultant mixture resemble that meat, poultry or seafood);
(3) The vegetable protein produce must contain the following levels
of nutrients per gram of protein:
------------------------------------------------------------------------
Nutrient Amount
------------------------------------------------------------------------
Vitamin A (IU).............................................. 13
Thiamine (milligrams)....................................... 0.02
Riboflavin (milligrams)..................................... .01
Niacin (milligrams)......................................... .3
Panthothenic acid (milligrams).............................. .04
Vitamin B6 (milligrams)..................................... .02
Vitamin B12 (micrograms).................................... .1
Iron (milligrams)........................................... .15
Magnesium (milligrams)...................................... 1.15
Zinc (milligrams)........................................... .5
Copper (micrograms)......................................... 24
Potassium (milligrams)...................................... 17
------------------------------------------------------------------------
(4) Compliance with the nutrient provisions set forth in paragraph
2(e) (1), (2) and (3) of this appendix shall be determined by the
appropriate methods described in ``Official Methods of Analysis of the
Association of Official Analytical Chemists'' (latest edition).
(f) Vegetable protein products to be used in the child nutrition
programs to resemble, and substitute in part for, meat, poultry or
seafood that comply with the labeling and nutritional specifications set
forth in paragraph 2(d) (1) and (2) and paragraph 2(e) (1), (2) and (3)
shall bear a label containing the following statement: ``This product
meets USDA-FNS requirements for use in meeting a portion of the meat/
meat alternate requirement of the child nutrition programs.'' This
statement shall appear on the principal display panel area of the
package.
(g) It is recommended that, for vegetable protein products to be
used to resemble, and substitute in part for, meat, poultry or seafood
and labeled as specified in paragraph 2(f) of this appendix,
manufacturers provide information on the percent protein contained in
the dry vegetable protein product (on an as is basis).
(h) It is recommended that for a vegetable protein product mix,
manufacturers provide information on (1) the amount by weight of dry
vegetable protein product in the package, (2) hydration instructions,
and (3) instructions on how to combine the mix with meat, poultry or
seafood. A vegetable protein product mix is defined as a dry product
containing vegetable protein products that comply with the labeling and
nutritional specifications set forth in paragraphs 2(d) (1) and (2) and
paragraph 2(e) (1), (2) and (3) along with substantial levels (more than
5 percent) of seasonings, bread crumbs, flavorings, etc.
3. Schools, institutions, and service institutions may use a
commercially prepared meat, poultry or seafood product combined with
vegetable protein products to meet all or part of the meat/meat
alternate requirement specified in Sec. 210.10, Sec. 225.16 or
Sec. 226.20 if the product bears a label containing the statement:
``This item contains vegetable protein product(s) which is authorized as
an alternate food in the child nutrition programs'' (outlined in
paragraph 2 of this appendix). This would designate that the vegetable
protein product used in the formulation of the meat, poultry or seafood
item complies with the naming and nutritional specifications set forth
in paragraph 2 of this appendix. The presence of this label does not
ensure the proper level of hydration, ratio of substitution nor the
contribution that the product makes toward meal pattern requirements for
the child nutrition programs.
Appendix B to Part 225 [Reserved]
Appendix C to Part 225--Child Nutrition (CN) Labeling Program
1. The Child Nutrition (CN) Labeling Program is a voluntary
technical assistance program administered by the Food and Nutrition
Service (FNS) in conjunction with the Food Safety and Inspection Service
(FSIS) and Agricultural Marketing Service (AMS) of the U.S. Department
of Agriculture (USDA), and National Marine Fisheries Service of the U.S.
Department of Commerce (USDC) for the Child Nutrition Programs. This
program essentially involves the review of a manufacturer's recipe or
product formulation to determine the contribution a serving of a
commercially prepared product makes toward meal pattern requirements and
a review of the CN label statement to ensure its accuracy. CN labeled
products must be produced in accordance with all requirements set forth
in this rule.
2. Products eligible for CN labels are as follows:
(a) Commercially prepared food products that contribute
significantly to the meat/meat alternate component of meal pattern
[[Page 177]]
requirements of 7 CFR 210.10, 225.16, and 226.20 and are served in the
main dish.
(b) Juice drinks and juice drink products that contain a minimum of
50 percent full strength juice by volume.
3. For the purpose of this appendix the following definitions apply:
(a) CN label is a food product label that contains a CN label
statement and CN logo as defined in paragraph 3(b) and (c) below.
(b) The CN logo (as shown below) is a distinct border which is used
around the edges of a ``CN label statement'' as defined in paragraph
3(c).
[GRAPHIC] [TIFF OMITTED] TC17SE91.006
(c) The CN label statement includes the following:
(1) The product identification number (assigned by FNS);
(2) The statement of the product's contribution toward meal pattern
requirements of 7 CFR 210.10, 220.8, 225.16, and 226.20. The statement
shall identify the contribution of a specific portion of a meat/meat
alternate product toward the meat/meat alternate, bread/bread alternate,
and/or vegetable/fruit component of the meal pattern requirements. For
juice drinks and juice drink products the statement shall identify their
contribution toward the vegetable/fruit component of the meal pattern
requirements.
(3) Statement specifying that the use of the CN logo and CN
statement was authorized by FNS, and
(4) The approval date.
For example:
[GRAPHIC] [TIFF OMITTED] TC17SE91.007
(d) Federal inspection means inspection of food products by FSIS,
AMS or USDC.
4. Food processors or manufacturers may use the CN label statement
and CN logo as defined in paragraph 3 (b) and (c) under the following
terms and conditions:
(a) The CN label must be reviewed and approved at the national level
by the Food and Nutrition Service and appropriate USDA or USDC Federal
agency responsible for the inspection of the product.
(b) The CN labeled product must be produced under Federal inspection
by USDA or USDC. The Federal inspection must be performed in accordance
with an approved partial or total quality control program or standards
established by the appropriate Federal inspection service.
(c) The CN label statement must be printed as an integral part of
the product label along with the product name, ingredient listing, the
inspection shield or mark for the appropriate inspection program, the
establishment number where appropriate and the manufacturer's or
distributor's name and address.
(1) The inspection marking for CN labeled non-meat, non-poultry, and
non-seafood products with the exception of juice drinks and juice drink
products is established as follows:
[GRAPHIC] [TIFF OMITTED] TC17SE91.008
[[Page 178]]
(d) Yields for determining the product's contribution toward meal
pattern requirements must be calculated using the Food Buying Guide for
Child Nutrition Programs (Program Aid Number 1331).
5. In the event a company uses the CN logo and CN label statement
inappropriately, the company will be directed to discontinue the use of
the logo and statement and the matter will be referred to the
appropriate agency for action to be taken against the company.
6. Products that bear a CN label statement as set forth in paragraph
3(c) carry a warranty. This means that if a food service authority
participating in the child nutrition programs purchases a CN labeled
product and uses it in accordance with the manufacturer's directions,
the school or institution will not have an audit claim filed against it
for the CN labeled product for noncompliance with the meal pattern
requirements of 7 CFR 210.10, 220.8, 225.16, and 226.20. If a State or
Federal auditor finds that a product that is CN labeled does not
actually meet the meal pattern requirements claimed on the label, the
auditor will report this finding to FNS. FNS will prepare a report on
the findings and send it to the appropriate divisions of FSIS and AMS of
the USDA, National Marine Fisheries Service of the USDC, Food and Drug
Administration, or the Department of Justice for action against the
company. Any or all of the following courses of action may be taken: (a)
The company's CN label may be revoked for a specific period of time; (b)
The appropriate agency may pursue a misbranding or mislabeling action
against the company producing the product; (c) The company's name will
be circulated to regional FNS offices; and (d) FNS will require the food
service program involved to notify the State agency of the labeling
violation.
7. FNS is authorized to issue operational policies, procedures, and
instructions for the CN Labeling Program. To apply for a CN label and to
obtain additional information on CN label application procedures, write
to: CN Labels, U.S. Department of Agriculture, Food and Nutrition
Service, Nutrition and Technical Services Division, 3101 Park Center
Drive, Alexandria, Virginia 22302.
PART 226--CHILD AND ADULT CARE FOOD PROGRAM--Table of Contents
Subpart A--General
Sec.
226.1 General purpose and scope.
226.2 Definitions.
226.3 Administration.
Subpart B--Assistance to States
226.4 Payments to States and use of funds.
226.5 Donation of commodities.
Subpart C--State Agency Provisions
226.6 State agency administrative responsibilities.
226.7 State agency responsibilities for financial management.
226.8 Audits.
Subpart D--Payment Provisions
226.9 Assignment of rates of reimbursement for centers.
226.10 Program payment procedures.
226.11 Program payments for child care centers, adult day care centers
and outside-school-hours care centers.
226.12 Administrative payments to sponsoring organizations for day care
homes.
226.13 Food service payments to sponsoring organizations for day care
homes.
226.14 Claims against institutions.
Subpart E--Operational Provisions
226.15 Institution provisions.
226.16 Sponsoring organization provisions.
226.17 Child care center provisions.
226.18 Day care home provisions.
226.19 Outside-school-hours care center provisions.
226.19a Adult day care center provisions.
226.20 Requirements for meals.
226.21 Food service management companies.
226.22 Procurement standards.
226.23 Free and reduced-price meals.
Subpart F--Food Service Equipment Provisions
226.24 Property management requirements.
Subpart G--Other Provisions
226.25 Other provisions.
226.26 Program information.
226.27 Information collection/recordkeeping--OMB assigned control
numbers.
Appendix A to Part 226--Alternate Foods for Meals
Appendix B to Part 226 [Reserved]
Appendix C to Part 226--Child Nutrition (CN) Labeling Program
Authority: Secs. 9, 11, 14, 16, and 17, National School Lunch Act,
as amended (42 U.S.C. 1758, 1759a, 1762a, 1765 and 1766).
Source: 47 FR 36527, Aug. 20, 1982, unless otherwise noted.
Subpart A--General
Sec. 226.1 General purpose and scope.
This part announces the regulations under which the Secretary of
Agriculture will carry out the Child and Adult Care Food Program.
Section 17
[[Page 179]]
of the National School Lunch Act, as amended, authorizes assistance to
States through grants-in-aid and other means to initiate, maintain, and
expand nonprofit food service programs for children or adult
participants in nonresidential institutions which provide care. The
Program is intended to enable such institutions to integrate a
nutritious food service with organized care services for enrolled
participants. Payments will be made to State agencies or FNS Regional
Offices to enable them to reimburse institutions for food service to
enrolled participants.
[53 FR 52587, Dec. 28, 1988, as amended by Amdt. 22, 55 FR 1377, Jan.
14, 1990]
Sec. 226.2 Definitions.
AFDC assistance unit means any individual or group of individuals
which is currently certified to receive assistance under the Aid to
Families with Dependent Children Program in a State where the standard
of eligibility for AFDC benefits does not exceed the income eligibility
guidelines for free meals under this part.
Act means the National School Lunch Act, as amended.
Administrative costs means costs incurred by an institution related
to planning, organizing, and managing a food service under the Program,
and allowed by the State agency financial management instruction. These
administrative costs may include administrative expenses associated with
outreach and recruitment of unlicensed family or group day care homes
and the allowable licensing-related expenses of such homes.
Adult means, for the purposes of the collection of social security
numbers as a condition of eligibility for free or reduced-price meals,
any individual 21 years of age or older.
Adult day care center means any public or private nonprofit
organization or any proprietary title XIX or title XX center (as defined
in this section) which (a) is licensed or approved by Federal, State or
local authorities to provide nonresidential adult day care services to
functionally impaired adults (as defined in this section) or persons 60
years of age or older in a group setting outside their homes or a group
living arrangement on a less than 24-hour basis and (b) provides for
such care and services directly or under arrangements made by the agency
or organization whereby the agency or organization maintains
professional management responsibility for all such services. Such
centers shall provide a structured, comprehensive program that provides
a variety of health, social and related support services to enrolled
adult participants through an individual plan of care.
Adult day care facility means a licensed or approved adult day care
center under the auspices of a sponsoring organization.
Adult participant means a person enrolled in an adult day care
center who is functionally impaired (as defined in this section) or 60
years of age or older.
Advanced payments means financial assistance made available to an
institution for its Program costs prior to the month in which such costs
will be incurred.
CACFP child care standards means the Child and Adult Care Food
Program child care standards developed by the Department for alternate
approval of child care centers, outside-school-hours care centers, and
day care homes by the State agency under the provisions of
Sec. 226.6(d)(2) and (3).
Child care center means any public or private nonprofit
organization, or any proprietary title XX center, as defined in this
section (``Proprietary title XX center''), licensed or approved to
provide nonresidential child care services to enrolled children,
primarily of preschool age, including but not limited to day care
centers, settlement houses, neighborhood centers, Head Start centers and
organizations providing day care services for children with handicaps.
Child care centers may participate in the Program as independent centers
or under the auspices of a sponsoring organization.
Child care facility means a licensed or approved child care center,
day care home, or outside-school-hours care center under the auspices of
a sponsoring organization.
Children means (a) persons 12 years of age and under, (b) children
of migrant workers 15 years of age and under, and (c) persons with
mental or physical
[[Page 180]]
handicaps, as defined by the State, enrolled in an institution or a
child care facility serving a majority of persons 18 years of age and
under.
Claiming percentage means the ratio of the number of enrolled
participants in an institution in each reimbursement category (free,
reduced-price or paid) to the total of enrolled participants in the
institution.
Current income means income received during the month prior to
application for free or reduced-price meals. If such income does not
accurately reflect the household's annual income, income shall be based
on the projected annual household income. If the prior year's income
provides an accurate reflection of the household's current annual
income, the prior year may be used as a base for the projected annual
income.
Day care home means an organized nonresidential child care program
for children enrolled in a private home, licensed or approved as a
family or group day care home and under the auspices of a sponsoring
organization.
Department means the U.S. Department of Agriculture.
Documentation means:
(a) The completion of the following information on a free and
reduced-price application:
(1) Names of all household members;
(2) Income received by each household member, identified by source
of income (such as earnings, wages, welfare, pensions, support payments,
unemployment compensation, social security and other cash income);
(3) The signature of an adult household member; and
(4) The social security number of the adult household member who
signs the application, or an indication that he/she does not possess a
social security number; or
(b) For a child who is a member of a food stamp or FDPIR household
or an AFDC assistance unit, ``documentation'' means the completion of
only the following information on a free and reduced price application:
(1) The name(s) and appropriate food stamp, FDPIR or AFDC case
number(s) for the child(ren); and
(2) The signature of an adult member of the household; or
(c) For a child in a tier II day care home who is a member of a
household participating in a Federally or State supported child care or
other benefit program with an income eligibility limit that does not
exceed the eligibility standard for free or reduced price meals:
(1) The name(s), appropriate case number(s) (if the program utilizes
case numbers), and name(s) of the qualifying program(s) for the
child(ren), and the signature of an adult member of the household; or
(2) If the sponsoring organization or day care home possesses it,
official evidence of the household's participation in a qualifying
program (submission of a free and reduced price application by the
household is not required in this case); or
(d) For an adult participant who is a member of a food stamp or
FDPIR household or is an SSI or Medicaid participant, as defined in this
section, ``documentation'' means the completion of only the following
information on a free and reduced price application:
(1) The name(s) and appropriate food stamp or FDPIR case number(s)
for the participant(s) or the adult participant's SSI or Medicaid
identification number, as defined in this section; and
(2) The signature of an adult member of the household; or
(e) For a child who is a Head Start participant, the Head Start
statement of income eligibility issued upon initial enrollment in the
Head Start Program or, if such statement is unavailable, other
documentation from Head Start officials that the child's family meets
the Head Start Program's low-income criteria.
Enrolled child means a child whose parent or guardian has submitted
to an institution a signed document which indicates that the child is
enrolled for child care. In addition, for the purposes of calculations
made by sponsoring organizations of family day care homes in accordance
with Secs. 226.13(d)(3)(ii) and 226.13(d)(3)(iii), ``enrolled child''
(or ``child in attendance'') means a child whose parent or guardian has
submitted a signed document which indicates that the child is enrolled
for child care; who is present in the day care home for the purpose of
child care;
[[Page 181]]
and who has eaten at least one meal during the claiming period.
Enrolled participant means an ``Enrolled child'' (as defined in this
section) or ``Adult participant'' (as defined in this section).
Expansion payments means financial assistance made available to a
sponsoring organization for its administrative expenses associated with
expanding a food service program to day care homes located in low-income
or rural areas. These expansion payments may include administrative
expenses associated with outreach and recruitment of unlicensed family
or group day care homes and the allowable licensing-related expenses of
such homes.
Family means, in the case of children, a group of related or
nonrelated individuals, who are not residents of an institution or
boarding house, but who are living as one economic unit or, in the case
of adult participants, the adult participant, and if residing with the
adult participant, the spouse and dependent(s) of the adult participant.
FDPIR household means any individual or group of individuals which
is currently certified to receive assistance as a household under the
Food Distribution Program on Indian Reservations.
Fiscal Year means a period of 12 calendar months beginning October 1
of any year and ending with September 30 of the following year.
FNS means the Food and Nutrition Service of the Department.
FNSRO means the appropriate Regional Office of the Food and
Nutrition Service.
Food service equipment assistance means Federal financial assistance
formerly made available to State agencies to assist institutions in the
purchase or rental of equipment to enable institutions to establish,
maintain or expand food service under the Program.
Food service management company means an organization other than a
public or private nonprofit school, with which an institution may
contract for preparing and, unless otherwise provided for, delivering
meals, with or without milk for use in the Program.
Food Stamp household means any individual or group of individuals
which is currently certified to receive assistance as a household under
the Food Stamp Program.
Free meal means a meal served under the Program to a participant
from a family which meets the income standards for free school meals; or
to a child who is automatically eligible for free meals by virtue of
food stamp, FDPIR, or AFDC recipiency; or to a child who is a Head Start
participant; or to an adult participant who is automatically eligible
for free meals by virtue of food stamp or FDPIR recipiency or is a SSI
or Medicaid participant. Regardless of whether the participant qualified
for free meals by virtue of meeting one of the criteria of this
definition, neither the participant nor any member of their family shall
be required to pay or to work in the food service program in order to
receive a free meal.
Functionally impaired adult means chronically impaired disabled
persons 18 years of age or older, including victims of Alzheimer's
disease and related disorders with neurological and organic brain
dysfunction, who are physically or mentally impaired to the extent that
their capacity for independence and their ability to carry out
activities of daily living is markedly limited. Activities of daily
living include, but are not limited to, adaptive activities such as
cleaning, shopping, cooking, taking public transportation, maintaining a
residence, caring appropriately for one's grooming or hygiene, using
telephones and directories, or using a post office. Marked limitations
refer to the severity of impairment, and not the number of limited
activities, and occur when the degree of limitation is such as to
seriously interfere with the ability to function independently.
Group living arrangement means residential communities which may or
may not be subsidized by federal, State or local funds but which are
private residences housing an individual or a group of individuals who
are primarily responsible for their own care and who maintain a presence
in the community but who may receive on-site monitoring.
Household means ``family'', as defined in Sec. 226.2 (``Family'').
Head Start participant means a child currently receiving assistance
under a Federally-funded Head Start Program
[[Page 182]]
who is categorically eligible for free meals in the CACFP by virtue of
meeting Head Start's low-income criteria.
Income standards means the family-size and income standards
prescribed annually by the Secretary for determining eligibility for
free and reduced-price meals under the National School Lunch Program and
the School Breakfast Program.
Income to the program means any funds used in an institution's food
service program, including, but not limited to all monies, other than
Program payments, received from other Federal, State, intermediate, or
local government sources; participant's payments for meals and food
service fees; income from any food sales to adults; and other income,
including cash donations or grants from organizations or individuals.
Independent center means a child care center, outside-school-hours
care center or adult day care center which enters into an agreement with
the State agency to assume final administrative and financial
responsibility for Program operations.
Infant cereal means any iron-fortified dry cereal specially
formulated for and generally recognized as cereal for infants that is
routinely mixed with breast milk or iron-fortified infant formula prior
to consumption.
Infant formula means any iron-fortified formula intended for dietary
use solely as a food for normal, healthy infants; excluding those
formulas specifically formulated for infants with inborn errors of
metabolism or digestive or absorptive problems. Infant formula, as
served, must be in liquid state at recommended dilution.
Institution means a sponsoring organization, child care center,
outside-school-hours care center or adult day care center which enters
into an agreement with the State agency to assume final administrative
and financial responsibility for Program operations.
Key Element Reporting System (KERS) means a comprehensive national
system for reporting critical key element performance data on the
operation of the program in institutions.
Low-income area means a geographical area in which at least 50
percent of the children are eligible for free or reduced price school
meals under the National School Lunch Program and the School Breakfast
Program, as determined in accordance with paragraphs (b) and (c),
definition of tier I day care home.
Meals means food which is served to enrolled participants at an
institution, child care facility or adult day care facility and which
meets the nutritional requirements set forth in this part.
Medicaid participant means an adult participant who receives
assistance under title XIX of the Social Security Act, the Grant to
States for Medical Assistance Programs--Medicaid.
Milk means pasteurized fluid types of unflavored or flavored whole
milk, lowfat milk, skim milk, or cultured buttermilk which meet State
and local standards for such milk, except that, in the meal pattern for
infants (0 to 1 year of age), milk means breast milk or iron-fortified
infant formula. In Alaska, Hawaii, American Samoa, Guam, Puerto Rico,
the Trust Territory of the Pacific Islands, the Northern Mariana
Islands, and the Virgin Islands if a sufficient supply of such types of
fluid milk cannot be obtained, ``milk'' shall include reconstituted or
recombined milk. All milk should contain vitamins A and D at levels
specified by the Food and Drug Administration and be consistent with
State and local standards for such milk.
Nonpricing program means an institution in which there is no
separate identifiable charge made for meals served to participants.
Nonprofit food service means all food service operations conducted
by the institution principally for the benefit of enrolled participants,
from which all of the Program reimbursement funds are used solely for
the operations or improvement of such food service.
Nonresidential means that the same participants are not maintained
in care for more than 24 hours on a regular basis.
OIG means the Office of the Inspector General of the Department.
Operating costs means expenses incurred by an institution in serving
meals to participants under the Program, and allowed by the State agency
financial management instruction.
[[Page 183]]
Outside-school-hours care center means a public or private nonprofit
organization, or a proprietary title XX center, as defined in this
section (``Proprietary title XX center''), licensed or approved to
provide organized nonresidential child care services to enrolled
children outside of school hours. Outside-school-hours care centers may
participate in the Program as independent centers or under the auspices
of a sponsoring organization.
Participants means ``Children'' or ``Adult participants'' as defined
in this section.
Personal property means property of any kind except real property.
It may be tangible--having physical existence--or intangible--having no
physical existence such as patents, inventions, and copyrights.
Pricing program means an institution in which a separate
identifiable charge is made for meals served to participants.
Program means the Child and Adult Care Food Program authorized by
section 17 of the National School Lunch Act, as amended.
Program payments means financial assistance in the form of start-up
payments, expansion payments, advance payments, or reimbursement paid or
payable to institutions for operating costs and administrative costs.
Proprietary title XIX center means any private, for profit center
(a) providing nonresidential adult day care services for which it
receives compensation from amounts granted to the States under title XIX
of the Social Security Act and (b) in which title XIX beneficiaries were
not less than 25 percent of enrolled eligible participants in the
calendar month preceding initial application or annual reapplication for
Program participation.
Proprietary title XX center means any private, for profit center:
(a) Providing nonresidential child care services for which it
receives compensation from amounts granted to the States under title XX
of the Social Security Act, and in which title XX child care
beneficiaries constitute no less than 25 percent of enrolled eligible
participants or licensed capacity, whichever is less, during the
calendar month preceding initial application or annual reapplication for
Program participation; or,
(b) Providing nonresidential adult day care services for which it
receives compensation from amounts granted to the States under title XX
of the Social Security Act and in which adult beneficiaries were not
less than 25 percent of enrolled eligible participants during the
calendar month preceding initial application or annual reapplication for
Program participation.
Reduced-price meal means a meal served under the Program to a
participant from a family which meets the income standards for reduced-
price school meals. Any separate charge imposed shall be less than the
full price of the meal, but in no case more than 40 cents for a lunch or
supper, 30 cents for a breakfast, and 15 cents for a supplement, and for
which neither the participant nor any member of his family is required
to work in the food service program.
Reimbursement means Federal financial assistance paid or payable to
institutions for Program costs within the rates assigned by the State
agency.
Rural area means any geographical area in a county which is not a
part of a Metropolitan Statistical Area or any ``pocket'' within a
Metropolitan Statistical Area which, at the option of the State agency
and with FNSRO concurrence, is determined to be geographically isolated
from urban areas.
SSI participant means an adult participant who receives assistance
under title XVI of the Social Security Act, the Supplemental Security
Income (SSI) for the Aged, Blind and Disabled Program.
School year means a period of 12 calendar months beginning July 1 of
any year and ending June 30 of the following year.
Sponsoring organization means a public or nonprofit private
organization which is entirely responsible for the administration of the
food program in: (a) One or more day care homes; (b) a child care
center, outside-school-hours care centers, or adult day care center
which is a legally distinct entity from the sponsoring organization; (c)
two or more child care centers, outside-school-hours care centers, or
adult day care centers; or (d) any combination of
[[Page 184]]
child care centers, adult day care centers, day care homes, and outside-
school-hours care centers. The term ``sponsoring organization'' also
includes a for-profit organization which is entirely responsible for
administration of the Program in any combination of two or more child
care centers, adult day care centers and outside-school-hours care
centers which are part of the same legal entity as the sponsoring
organization, and which are proprietary title XIX or XX centers, as
defined in this section (``Proprietary Title XIX center'', ``Proprietary
Title XX center'').
Start-up payments means financial assistance made available to a
sponsoring organization for its administrative expenses associated with
developing or expanding a food service program in day care homes and
initiating successful Program operations. These start-up payments may
include administrative expenses associated with outreach and recruitment
of unlicensed family or group day care homes and the allowable
licensing-related expenses of such homes.
State means any of the 50 States, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa,
the Trust Territory of the Pacific Islands, and the Northern Mariana
Islands.
State agency means the State educational agency or any other State
agency that has been designated by the Governor or other appropriate
executive, or by the legislative authority of the State, and has been
approved by the Department to administer the Program within the State or
in States in which FNS administers the Program, FNSRO. This also may
include a State agency other than the existing CACFP State Agency, when
such agency is designated by the Governor of the State to administer
only the adult day care component of the CACFP.
Tier I day care home means (a) a day care home that is operated by a
provider whose household meets the income standards for free or reduced-
price meals, as determined by the sponsoring organization based on a
completed free and reduced price application, and whose income is
verified by the sponsoring organization of the home in accordance with
Sec. 226.23(h)(6);
(b) A day care home that is located in an area served by a school
enrolling elementary students in which at least 50 percent of the total
number of children enrolled are certified eligible to receive free or
reduced price meals; or
(c) A day care home that is located in a geographic area, as defined
by FNS based on census data, in which at least 50 percent of the
children residing in the area are members of households which meet the
income standards for free or reduced price meals.
Tier II day care home means a day care home that does not meet the
criteria for a Tier I day care home.
Title XVI means Title XVI of the Social Security Act which
authorizes the Supplemental Security Income for the Aged, Blind, and
Disabled Program--SSI.
Title XIX means Title XIX of the Social Security Act which
authorizes the Grants to States for Medical Assistance Programs--
Medicaid.
Title XX means Title XX of the Social Security Act.
Uniform Federal Assistance Regulations means the Department's
regulations, 7 CFR part 3015, establishing Department-wide policies and
standards for administration of grants and cooperative agreements.
Verification means a review of the information reported by
institutions to the State agency regarding the eligibility of
participants for free or reduced-price meals, and, in addition, for a
pricing program, confirmation of eligibility for free or reduced-price
benefits under the program. Verification for a pricing program shall
include confirmation of income eligibility and, at State discretion, any
other information required on the application which is defined as
documentation in Sec. 226.2. Such verification may be accomplished by
examining information (e.g., wage stubs, etc.) provided by the household
or other sources of information as specified in Sec. 226.23(h)(2)(iv).
However, if a food stamp, FDPIR or AFDC case number is provided for a
child, verification for such child shall include only confirmation that
the child is included in a currently certified food stamp or FDPIR
household or AFDC assistance
[[Page 185]]
unit. If a Head Start statement of income eligibility is provided for a
child, verification for such child shall include only confirmation that
the child is a Head Start participant. For an adult participant, if a
food stamp or FDPIR case number or SSI or Medicaid assistance
identification number is provided, verification for such participant
shall include only confirmation that the participant is included in a
currently certified food stamp or FDPIR household or is a current SSI or
Medicaid participant.
Yogurt means commercially coagulated milk products obtained by the
fermentation of specific bacteria, that meet milk fat or milk solid
requirements to which flavoring foods or ingredients may be added. These
products are covered by the Food and Drug Administration's Standard of
Identity for yogurt, lowfat yogurt, and nonfat yogurt, (21 CFR 131.200),
(21 CFR 131.203), (21 CFR 131.206), respectively.
[47 FR 36527, Aug. 20, 1982; 47 FR 46072, Oct. 15, 1982, as amended at
48 FR 21529, May 13, 1983; 48 FR 41142, Sept. 14, 1983; 50 FR 19310, May
8, 1985; 51 FR 31316, Sept. 3, 1986; 52 FR 36906, Oct. 2, 1987; 53 FR
52587, Dec. 28, 1988; 54 FR 27153, June 28, 1989; Amdt. 22, 55 FR 1377,
Jan. 14, 1990; 61 FR 25554, May 22, 1996; 62 FR 901, Jan. 7, 1997; 62 FR
23617, May 1, 1997; 63 FR 9104, Feb. 24, 1998; 63 FR 9727, Feb. 26,
1998; 64 FR 61775, Nov. 15, 1999]
Sec. 226.3 Administration.
(a) Within the Department, FNS shall act on behalf of the Department
in the administration of the Program.
(b) Within the States, responsibility for the administration of the
Program shall be in the State agency, except that if FNS has
continuously administered the Program in any State since October 1,
1980, FNS shall continue to administer the Program in that State. A
State in which FNS administers the Program may, upon request to FNS,
assume administration of the Program.
(c) Each State agency desiring to take part in the Program shall
enter into a written agreement with the Department for the
administration of the Program in the State in accordance with the
provisions of this part. This agreement shall cover the operation of the
Program during the period specified therein and may be extended by
consent of both parties.
(d) FNSRO shall, in each State in which it administers the Program,
have available all funds and assume all responsibilities of a State
agency as set forth in this part.
Subpart B--Assistance to States
Sec. 226.4 Payments to States and use of funds.
(a) Availability of funds. For each fiscal year based on funds
provided to the Department, FNS shall make funds available to each State
agency to reimburse institutions for their costs in connection with food
service operations, including administrative expenses, under this part.
Funds shall be made available in an amount no less than the sum of the
totals obtained under paragraphs (b), (c), (d), (e) and (h) of this
section. However, in any fiscal year, the aggregate amount of assistance
provided to a State under this part shall not exceed the sum of the
Federal funds provided by the State to participating institutions within
the State for that fiscal year and any funds used by the State under
paragraphs (h) and (j) of this section.
(b) Center funds. For meals served to participants in child care
centers, adult day care centers and outside-school-hours care centers,
funds shall be made available to each State agency in an amount no less
than the sum of the products obtained by multiplying:
(1) The number of breakfasts served in the Program within the State
to participants from families that do not satisfy the eligibilty
standards for free and reduced-price school meals enrolled in
institutions by the national average payment rate for breakfasts for
such participants under section 4 of the Child Nutrition Act of 1966;
(2) The number of breakfasts served in the Program within the State
to participants from families that satisfy the eligibilty standards for
free school meals enrolled in institutions by the national average
payment rate for free breakfasts under section 4 of the Child Nutrition
Act of 1966;
(3) The number of breakfasts served to participants from families
that satisfy the eligibilty standard for reduced-price school meals
enrolled in institutions by the national average payment
[[Page 186]]
rate for reduced-price school breakfasts under section 4 of the Child
Nutrition Act of 1966;
(4) The number of lunches and suppers served in the Program within
the State by the national average payment rate for lunches under section
4 of the National School Lunch Act. (All lunches and suppers served in
the State are funded under this provision);
(5) The number of lunches and suppers served in the Program within
the State to participants from families that satisfy the eligibilty
standard for free school meals enrolled in institutions by the national
average payment rate for free lunches under section 11 of the National
School Lunch Act;
(6) The number of lunches and suppers served in the Program within
the State to participants from families that satisfy the eligibilty
standard for reduced-price school meals enrolled in institutions by the
national average payment rate for reduced-price lunches under section 11
of the National School Lunch Act;
(7) The number of supplements served in the Program within the State
to participants from families that do not satisfy the eligibilty
standards for free and reduced-price school meals enrolled in
institutions by 2.75 cents;
(8) The number of supplements served in the Program within the State
to participants from families that satisfy the eligibilty standard for
free school meals enrolled in institutions by 30 cents;
(9) The number of supplements served in the Program within the State
to participants from families that satisfy the eligibilty standard for
reduced-price school meals enrolled in institutions by 15 cents.
(c) Day care home funds. For meals served to children in day care
homes, funds shall be made available to each State agency in an amount
no less than the sum of products obtained by multiplying:
(1) The number of breakfasts served in the Program within the State
to children enrolled in tier I day care homes by the current tier I day
care home rate for breakfasts;
(2) The number of breakfasts served in the Program within the State
to children enrolled in tier II day care homes that have been determined
eligible for free or reduced price meals by the current tier I day care
home rate for breakfasts;
(3) The number of breakfasts served in the Program within the State
to children enrolled in tier II day care homes that do not satisfy the
eligibility standards for free or reduced price meals, or to children
from whose households applications were not collected, by the current
tier II day care home rate for breakfasts;
(4) The number of lunches and suppers served in the Program within
the State to children enrolled in tier I day care homes by the current
tier I day care home rate for lunches/suppers;
(5) The number of lunches and suppers served in the Program within
the State to children enrolled in tier II day care homes that have been
determined eligible for free or reduced price meals by the current tier
I day care home rate for lunches/suppers;
(6) The number of lunches and suppers served in the Program within
the State to children enrolled in tier II day care homes that do not
satisfy the eligibility standards for free or reduced price meals, or to
children from whose households applications were not collected, by the
current tier II day care home rate for lunches/suppers;
(7) The number of supplements served in the Program within the State
to children enrolled in tier I day care homes by the current tier I day
care home rate for supplements;
(8) The number of supplements served in the Program within the State
to children enrolled in tier II day care homes that have been determined
eligible for free or reduced price meals by the current tier I day care
home rate for supplements; and
(9) The number of supplements served in the Program within the State
to children enrolled in tier II day care homes that do not satisfy the
eligibility standards for free or reduced price meals, or to children
from whose households applications were not collected, by the current
tier II day care home rate for supplements.
(d) Administrative funds. For administrative payments to day care
home sponsoring organizations, funds shall be made available to each
State agency
[[Page 187]]
in an amount not less than the product obtained each month by
multiplying the number of day care homes participating under each
sponsoring organization within the State by the applicable rates
specified in Sec. 226.12(a)(3).
(e) Start-up and expansion funds. For start-up and expansion
payments to eligible sponsoring organizations, funds shall be made
available to each State agency in an amount equal to the total amount of
start-up and expansion payments made in the most recent period for which
reports are available for that State or on the basis of estimates by
FNS.
(f) Funding assurance. FNS shall ensure that, to the extent funds
are appropriated, each State has sufficient Program funds available for
providing start-up, expansion and advance payments in accordance with
this part.
(g) Rate adjustments. FNS shall publish a notice in the Federal
Register to announce each rate adjustment. FNS shall adjust the
following rates on the specified dates:
(1) The rates for meals served in tier I and tier II day care homes
shall be adjusted annually, on July 1 (beginning July 1, 1997), on the
basis of changes in the series for food at home of the Consumer Price
Index for All Urban Consumers published by the Department of Labor. Such
adjustments shall be rounded to the nearest lower cent based on changes
measured over the most recent twelve-month period for which data are
available. The adjustments shall be computed using the unrounded rate in
effect for the preceding school year.
(2) The rate for supplements served in child care centers, adult day
care centers and outside-school-hours care centers shall be adjusted
annually, on July 1, on the basis of changes in the series for food away
from home of the Consumer Price Index for All Urban Consumers published
by the Department of Labor. Such adjustments shall be made to the
nearest $.0025 based on changes measured over the most recent twelve-
month period for which data are available.
(3) The rate for administrative payments to day care home sponsoring
organizations shall be adjusted annually, on July 1, on the basis of
changes in the series for all items of the Consumer Price Index for All
Urban Consumers published by the Department of Labor. Such adjustments
shall be made to the nearest dollar based on changes measured over the
most recent twelve-month period for which data are available.
(h) Audit funds. For the expense of conducting audits and reviews
under Sec. 226.8, funds shall be made available to each State agency in
an amount equal to two percent of the Program reimbursement provided to
institutions within the State during the second fiscal year preceding
the fiscal year for which these funds are to be made available. The
amount of assistance provided to a State under this paragraph in any
fiscal year may not exceed the State's expenditures under Sec. 226.8
during such fiscal year.
(i) Method of funding. FNS shall authorize funds for State agencies
in accordance with the Uniform Federal Assistance Regulations.
(j) Special developmental projects. The State agency may use in
carrying out special developmental projects an amount not to exceed one
percent of Program funds used in the second prior fiscal year. Special
developmental projects shall conform to FNS guidance and be approved in
writing by FNS.
[47 FR 36527, Aug. 20, 1982, as amended at 52 FR 36906, Oct. 2, 1987; 53
FR 52588, Dec. 28, 1988; 62 FR 902, Jan. 7, 1997; 63 FR 9728, Feb. 26,
1998]
Sec. 226.5 Donation of commodities.
(a) USDA foods available under section 6 of this Act, section 416 of
the Agricultural Act of 1949 (7 U.S.C. 1431) or purchased under section
32 of the Act of August 24, 1935 (7 U.S.C. 1431), section 709 of the
Food and Agriculture Act of 1965 (7 U.S.C. 1446a-1), or other authority,
and donated by the Department shall be made available to each State.
(b) The value of such commodities donated to each State for each
school year shall be, at a minimum, the amount obtained by multiplying
the number of reimbursable lunches and suppers served in participating
institutions in that State during the preceding school year by the rate
for commodities established under section 6(e)
[[Page 188]]
of the Act for the current school year. Adjustments shall be made at the
end of each school year to reflect the difference between the number of
reimbursable lunches and suppers served during the preceding year and
the number served during the current year, and subsequent commodity
entitlement shall be based on the adjusted meal counts. At the
discretion of FNS, current-year adjustments may be made for significant
variations in the number of reimbursable meals served. Such current-year
adjustments will not be routine and will only be made for unusual
problems encountered in a State, such as a disaster that necessitates
institutional closures for a prolonged period of time. CACFP State
agencies electing to receive cash-in-lieu of commodities will receive
payments based on the number of reimbursable meals actually served
during the current school year.
[47 FR 36527, Aug. 20, 1982, as amended at 62 FR 23618, May 1, 1997]
Subpart C--State Agency Provisions
Sec. 226.6 State agency administrative responsibilities.
(a) State agency personnel. Each State agency shall provide
sufficient consultative, technical and managerial personnel to
administer the Program, provide sufficient training and technical
assistance to institutions and monitor performance to facilitate
expansion and effective operation of the Program.
(b) Application approval. Each State agency shall establish an
application procedure to determine the eligibility under this part of
applicant institutions, and facilities for which applications are
submitted by sponsoring organizations. State agencies, by written
consent of the State agency and the institutions, shall renew agreements
with institutions not less frequently than annually. A State agency may
not execute an agreement to be effective during two fiscal years but may
nevertheless establish an ongoing renewal process for the purpose of
reviewing and approving applications from participating institutions
throughout the fiscal year. As a minimum, such application approval
process shall include:
(1) Renewal of the Program agreement;
(2) For child care centers, adult day care centers and outside-
school-hours care centers, submission of current eligibility information
on enrolled participants.
(3) For sponsoring organizations of day care homes, submission of
the current total number of children enrolled, and an assurance that day
care home providers' children enrolled in the Program are eligible for
free or reduced-price meals;
(4) Issuance of a nondiscrimination policy statement and media
release;
(5) For sponsoring organizations, submission of a management plan;
(6) Submission of an administrative budget;
(7) Submission of documentation that all child care centers, adult
day care centers, outside-school-hours care centers, and day care homes
for which application is made are in compliance with Program licensing/
approval provisions;
(8) For proprietary title XX child care centers, submission of
documentation that they are currently providing nonresidential day care
services for which they receive compensation under title XX of the
Social Security Act, and certification that not less than 25 percent of
enrolled children or 25 percent of licensed capacity, whichever number
is less, in each such center during the most recent calendar month were
title XX beneficiaries. In the case of title XIX or title XX adult day
care centers, submission of documentation that they are currently
providing nonresidential day care services for which they receive
compensation under title XIX or title XX of the Social Security Act, and
certification that not less than 25 percent of enrolled adult
participants in each such center during the most recent calendar month
were title XIX or title XX beneficiaries;
(9) Statement of institutional preference to receive commodities or
cash-in-lieu of commodities;
(10) Institutional choice to receive all, part, or none of advance
payment. Any institution applying for participation in the Program shall
be notified of approval or disapproval by the State agency in writing
within 30 calendar
[[Page 189]]
days of filing a complete and correct application. If an institution
submits an incomplete application, the State agency shall notify the
institution within 15 calendar days of receipt of the application and
shall provide technical assistance, if necessary, to the institution for
the purpose of completing its application. Any disapproved applicant
shall be notified of its right to appeal under paragraph (j) of this
section.
(c) Denial of applications and termination of institutions. The
State agency shall not enter into an agreement with any applicant
institution which the State agency determines to have been seriously
deficient at any time in its operation of any Federal child nutrition
program. However, the State agency may enter into an agreement with such
an institution when with FNS concurrence it determines that the
deficiencies have been corrected. The State agency shall terminate the
program agreement with any institution which it determines to be
seriously deficient. However, the State agency shall afford an
institution every reasonable opportunity to correct problems before
terminating the institution for being seriously deficient. The State
agency shall notify FNS whenever it has denied an application from or
terminated the participation of a seriously deficient institution. This
notification shall be made within 15 days of the review official's
decision upholding the State's action or, if the institution elects not
to appeal the decision, within 15 days of the expiration of the appeal
right. FNS will maintain a list of these institutions and will notify
all other State agencies of these institutions' ineligibility to
participate in the program. FNS may determine independently that an
institution has been seriously deficient in its operation of any Federal
child nutrition program and include such institution on the list of
ineligible institutions if appropriate corrective action is not taken.
State agencies shall not enter into an agreement with any institution
included on this list of ineligible institutions and shall terminate any
participating institution included on the list within 30 days of the
receipt of notification by FNS of the institution's ineligible status.
Once included on this list, an institution shall be ineligible to
participate in the program until such time as FNS, in consultation with
the appropriate State agency, determines that the serious deficiency
which resulted in the ineligible status has been corrected. Any
institution which is identifiable with a seriously deficient institution
through its corporate organization, officers, employees, or otherwise
shall also be considered to be ineligible unless it is demonstrated to
the satisfaction of the State agency, with FNS concurrence, that good
cause exists for considering the institution distinct from the seriously
deficient institution. Denial or termination actions taken on the basis
of FNS notification of ineligible status shall not be subject to
administrative review as provided in Sec. 226.6(k). However, an
institution which FNS has determined to be seriously deficient and which
has not taken acceptable corrective action may request an administrative
review of this determination by an FNS review official in accordance
with the appeal procedures set forth in Sec. 226.6(k) and will not be
included on the list of ineligible institutions unless FNS'
determination is upheld by the review official. Serious deficiencies,
which are grounds for disapproval of applications and for termination
include, but are not limited to, any of the following:
(1) Noncompliance with the applicable bid procedures and contract
requirements of Federal child nutrition program regulations;
(2) The submission of false information to the State agency;
(3) Failure to return to the State agency any advance payments which
exceeded the amount earned for serving eligible meals, or failure to
return disallowed start-up or expansion payments;
(4) Failure to maintain adequate records;
(5) Failure to adjust meal orders to conform to variations in the
number of participants;
(6) The claiming of Program payments for meals not served to
participants;
(7) Service of a significant number of meals which did not include
required quantities of all meal components;
[[Page 190]]
(8) Continued use of food service management companies that are in
violation of health codes;
(9) Failure of a sponsoring organization to disburse payments to its
facilities in accordance with its management plan;
(10) A history of administrative or financial mismanagement in any
Federal child nutrition program;
(11) The claiming of Program payment for meals served by a
proprietary title XX child care center during a calendar month in which
less than 25 percent of enrolled children or 25 percent of licensed
capacity, whichever number is less, were title XX beneficiaries. In the
case of an adult day care center, the claiming of Program payment for
meals served by a proprietary title XIX or title XX center during a
calendar month in which less than 25 percent of enrolled adult
participants were title XIX or title XX beneficiaries.
(d) Licensing/approval for child care centers, outside-school-hours
care centers and day care homes. This section prescribes State agency
responsibilities to ensure that child care centers and day care homes
meet the licensing/approval criteria set forth in this part. Sponsoring
organizations shall submit to the State agency documentation that
facilities under their jurisdiction are in compliance with licensing/
approval requirements. Independent centers shall submit such
documentation to the State agency on their own behalf.
(1) General. Each State agency shall establish procedures to
annually review information submitted by institutions to ensure that all
participating child care centers, day care homes, and outside-school-
hours care centers either:
(i) Are licensed or approved by Federal, State, or local
authorities, provided that institutions which are approved for Federal
programs on the basis of State or local licensing shall not be eligible
for the Program if their licenses lapse or are terminated; or
(ii) Are complying with applicable procedures to renew licensing or
approval in situations where the State agency has no information that
licensing or approval will be denied; or
(iii) Receive Title XX funds for providing child care, if licensing
or approval is not available; or
(iv) Demonstrate compliance with applicable State or local child
care standards to the State agency, if licensing is not available and
title XX funds are not received; or
(v) Demonstrate compliance with CACFP child care standards to the
State agency, if licensing or approval is not available and Title XX
funds are not received.
(2) CACFP child care standards. (i) When licensing or approval is
not available, independent child care centers, and sponsoring
organizations on behalf of their child care centers or day care homes,
may elect to demonstrate compliance, annually, with the following CACFP
child care standards or other standards specified in paragraph (d)(3) of
this section:
(A) Staff/child ratios. (1) Day care homes provide care for no more
than 12 children at any one time. One home caregiver is responsible for
no more than 6 children ages 3 and above, or no more than 5 children
ages 0 and above. No more than 2 children under the age of 3 are in the
care of 1 caregiver. The home provider's own children who are in care
and under the age of 14 are counted in the maximum ratios of caregivers
to children.
(2) Child care centers and outside-school-hours care centers do not
fall below the following staff/child ratios:
(i) For children under 6 weeks of age--1:1
(ii) For children ages 6 weeks up to 3 years--1:4
(iii) For children ages 3 years up to 6 years--1:6
(iv) For children ages 6 years up to 10 years--1:15
(v) For children ages 10 and above--1:20
(B) Nondiscrimination. Day care services are available without
discrimination on the basis of race, color, national origin, sex, age,
or handicap.
(C) Safety and sanitation. (1) A current health/sanitation permit or
satisfactory report of an inspection conducted by local authorities
within the past 12 months shall be submitted.
[[Page 191]]
(2) A current fire/building safety permit or satisfactory report of
an inspection conducted by local authorities within the past 12 months
shall be submitted.
(3) Fire drills are held in accordance with local fire/building
safety requirements.
(D) Suitability of facilities. (1) Ventilation, temperature, and
lighting are adequate for children's safety and comfort.
(2) Floors and walls are cleaned and maintained in a condition safe
for children.
(3) Space and equipment, including rest arrangements for preschool
age children, are adequate for the number of age range of participating
children.
(E) Social services. Independent centers, and sponsoring
organizations in coordination with their facilities, have procedures for
referring families of children in care to appropriate local health and
social service agencies.
(F) Health services. (1) Each child is observed daily for
indications of difficulties in social adjustment, illness, neglect, and
abuse, and appropriate action is initiated.
(2) A procedure is established to ensure prompt notification of the
parent or guardian in the event of a child's illness or injury, and to
ensure prompt medical treatment in case of emergency.
(3) Health records, including records of medical examinations and
immunizations, are maintained for each enrolled child. (Not applicable
to day care homes.)
(4) At least one full-time staff member is currently qualified in
first aid, including artificial respiration techniques. (Not applicable
to day care homes.)
(5) First aid supplies are available.
(6) Staff members undergo initial and periodic health assessments.
(G) Staff training. The institution provides for orientation and
ongoing training in child care for all caregivers.
(H) Parental involvement. Parents are afforded the opportunity to
observe their children in day care.
(I) Self-evaluation. The institution has established a procedure for
periodic self-evaluation on the basis of CACFP child care standards.
(ii) When licensing or approval is not available, independent
outside-school-hours care centers, and sponsoring organizations on
behalf of their outside-school-hours care centers, may elect to
demonstrate compliance with child care standards developed by the State
agency which shall include, as a minimum, information on: (A) Fire/
safety, (B) sanitation, (C) organized activities, (D) kitchen and
restroom facilities, (E) appropriateness of games and materials, (F)
availability of emergency medical care, and (G) child-staff ratios as
indicated in Sec. 226.6(d)(2)(i)(A). For items (A) and (B), of this
paragraph, appropriate State or local permits are required.
(3) Alternate approval procedures. Each State agency shall establish
procedures to review information submitted by institutions for centers
or homes for which licensing or approval is not available in order to
establish eligibility for the Program. Licensing or approval is not
available when (i) no Federal, State, or local licensing/approval
standards have been established for child care centers, outside-school-
hours care centers, or day care homes; or (ii) no mechanism exists to
determine compliance with licensing/approval standards. In these
situations, independent centers, and sponsoring organizations on behalf
of their facilities, may choose to demonstrate compliance with either
CACFP child care standards, applicable State child care standards, or
applicable local child care standards. State agencies shall provide
information about applicable State child care standards and CACFP child
care standards to institutions, but may require institutions electing to
demonstrate compliance with applicable local child care standards to
identify and submit these standards. The State agency may permit
independent centers, and sponsoring organizations on behalf of their
facilities, to submit self-certification forms, and may grant approval
without first conducting a compliance review at the center or facility.
But the State agency shall require submission of health/sanitation and
fire/safety permits or certificates for all independent centers and
facilities seeking alternate child care standards approval. Compliance
[[Page 192]]
with applicable child care standards are subject to review in accordance
with Sec. 226.6(n).
(e) Licensing/approval for adult day care centers. This paragraph
prescribes State agency responsibilities to ensure that adult day care
centers meet the licensing/approval criteria set forth in this part.
Sponsoring organizations shall submit to the State agency documentation
that facilities under their jurisdiction are in compliance with
licensing/approval requirements. Independent adult day care centers
shall submit such documentation to the State agency on their own behalf.
Each State agency shall establish procedures to annually review
information submitted by institutions to ensure that all participating
adult day care centers either:
(1) Are licensed or approved by Federal, State or local authorities,
provided that institutions which are approved for Federal programs on
the basis of State or local licensing shall not be eligible for the
Program if their licenses lapse or are terminated; or
(2) Are complying with applicable procedures to renew licensing or
approval in situations where the State agency has no information that
licensing or approval will be denied.
(f) Annual requirements. State agencies shall require institutions
to comply with applicable provisions of this part. Each State agency
shall annually:
(1) Enter into and execute a written Program agreement with each
institution, or renew such agreement with the written concurrence of the
institution. The Program agreement shall provide that the institution
shall accept final financial and administrative responsibility for
management of an effective food service, comply with all requirements
under this part, and comply with all requirements of title VI of the
Civil Rights Act of 1964, title IX of the Education Amendments of 1972,
Section 504 of the Rehabilitation Act of 1973, the Age Discrimination
Act of 1975 and the Department's regulations concerning
nondiscrimination (7 CFR parts 15, 15a and 15b), including requirements
for racial and ethnic participation data collection, public notification
of the nondiscrimination policy, and reviews to assure compliance with
such policy, to the end that no person shall, on the grounds of race,
color, national origin, sex, age, or handicap be excluded from
participation in, be denied the benefits of, or be otherwise subjected
to discrimination under the Program.
(2) Require each sponsoring organization to submit a management plan
with its application for review and approval. Such a plan shall include:
detailed information on the organizational administrative structure; the
staff assigned to Program management and monitoring; administrative
budget; procedures which will be used by the sponsoring organization to
administer the Program in and disburse payments to the child care
facilities under its jurisdiction; and, for sponsoring organizations of
day care homes, a description of the system for making tier I day care
home determinations, and a description of the system of notifying tier
II day care homes of their options for reimbursement. For initial
implementation of the two-tiered reimbursement structure for day care
homes, by April 1, 1997, each sponsoring organization of day care homes
shall submit an amendment to its plan, subject to review and approval by
the State agency, describing its systems for making tier I day care home
determinations and for notifying tier II day care homes of their options
for reimbursement.
(3) Require each institution to submit an administrative budget.
Each sponsoring organization shall be required to incorporate this
budget into its management plan.
(4) Determine that all meal procurements with food service
management companies are in conformance with the bid and contractual
requirements of Sec. 226.22.
(5) Inquire as to the preference of institutions for commodities or
cash-in-lieu of commodities.
(6) Provide institutions with information on foods available in
plentiful supply, based on information provided by the Department.
(7) Inform institutions with separate meal charges of their
responsibility to ensure that free and reduced-price meals are served to
participants unable to pay the full price and provide to all
[[Page 193]]
institutions a copy of the income standards to be used by institutions
for determining the eligibility of participants for free and reduced-
price meals under the Program.
(8) Perform verification of the eligibility of participants for free
and reduced-price meals in participating institutions in accordance with
the procedures outlined in Sec. 226.23(h). State agencies verifying the
information on free and reduced-price applications shall ensure that
verification activities are applied without regard to race, color,
national origin, sex, age, or handicap.
(9) Coordinate with the State agency which administers the National
School Lunch Program to ensure the receipt of a list of elementary
schools in the State in which at least one-half of the children enrolled
are certified eligible to receive free or reduced price meals. The State
agency shall provide the list to sponsoring organizations by April 1,
1997, and by February 15 of each year thereafter, unless the State
agency that administers the National School Lunch Program has elected to
base data for the list on a month other than October, in which case the
State agency shall provide the list to sponsoring organizations within
15 calendar days of its receipt from the State agency that administers
the National School Lunch Program. The State agency also shall provide
each sponsoring organization with census data, as provided to the State
agency by FNS upon its availability on a decennial basis, showing areas
in the State in which at least 50 percent of the children are from
households meeting the income standards for free or reduced price meals.
In addition, the State agency shall ensure that the most recent
available data is used if the determination of a day care home's
eligibility as a tier I day care home is made using school or census
data. Determinations of a day care home's eligibility as a tier I day
care home shall be valid for one year if based on a provider's household
income, three years if based on school data, or until more current data
are available if based on census data. However, a sponsoring
organization, the State agency, or FNS may change the determination if
information becomes available indicating that a home is no longer in a
qualified area. The State agency shall not routinely require annual
redeterminations of the tiering status of tier I day care homes based on
updated elementary school data.
(10) Provide all sponsoring organizations of day care homes in the
State with a listing of State-funded programs, participation in which by
a parent or child will qualify a meal served to a child in a tier II
home for the tier I rate of reimbursement.
(11) Require each sponsoring organization of day care homes to
submit the total number of tier I and tier II day care homes that it
sponsors; a breakdown showing the total number of children enrolled in
tier I day care homes; the total number of children enrolled in tier II
day care homes; and the number of children in tier II day care homes
that have been identified as eligible for free or reduced price meals.
(g) Program expansion. Each State agency shall take action to expand
the availability of benefits under this Program. At a minimum, the State
shall annually notify each nonparticipating child care center, outside-
school-hours care center, and day care home within the State that is
licensed, approved, registered, or receiving funds under title XX and
each nonparticipating adult day care center that is licensed or
approved, of the availability of the Program, the requirements for
Program participation, and the application procedures to be followed in
the Program. The State agency shall make the list of child care centers,
adult day care centers, outside-school-hours care centers, and day care
homes notified each year available to the public upon request.
(h) Commodity distribution. The State shall annually inquire as to
the preference of each institution for commodities or cash-in-lieu of
commodities. Each institution electing cash-in-lieu of commodities shall
receive such payments. Each institution which elects to receive
commodities shall have commodities provided to it unless the State
agency, after consultation with the State commodity distribution
[[Page 194]]
agency, demonstrates to FNS that distribution of commodities to the
number of such institutions would be impracticable. The State agency may
then, with the concurrence of FNS, provide cash-in-lieu of commodities
for all institutions. A State agency request for cash-in-lieu of all
commodities shall be submitted to FNS not later than May 1 of the school
year preceding the school year for which the request is made. The State
agency shall, by June 1 of each year, submit a list of institutions
which have elected to receive commodities to the State commodity
distribution agency, unless FNS has approved a request for cash-in-lieu
of commodities for all institutions. The list shall be accompanied by
information on the average daily number of lunches and suppers to be
served to participants by each such institution.
(i) Standard contract. Each State agency shall develop a standard
contract in accordance with Sec. 226.21 and provide for its use between
institutions and food service management companies. The contract shall
expressly and without exception stipulate:
(1) The institution shall provide the food service management
company with a list of the State agency approved child care centers, day
care homes, adult day care centers, and outside-school-hours care
centers to be furnished meals by the food service management company,
and the number of meals, by type, to be delivered to each location;
(2) The food service management company shall maintain such records
(supported by invoices, receipts or other evidence) as the institution
will need to meet its responsibilities under this part, and shall
promptly submit invoices and delivery reports to the institution no less
frequently than monthly;
(3) The food service management company shall have Federal, State or
local health certification for the plant in which it proposes to prepare
meals for use in the Program, and it shall ensure that health and
sanitation requirements are met at all times. In addition, the State
agency may require the food service management company to provide for
meals which it prepares to be periodically inspected by the local health
department or an independent agency to determine bacteria levels in the
meals being prepared. These bacteria levels shall conform to the
standards which are applied by the local health authority with respect
to the level of bacteria which may be present in meals prepared or
served by other establishments in the locality. Results of these
inspections shall be submitted to the institution and to the State
agency;
(4) The meals served under the contract shall conform to the cycle
menus upon which the bid was based, and to menu changes agreed upon by
the institution and food service management company;
(5) The books and records of the food service management company
pertaining to the institution's food service operation shall be
available for inspection and audit by representatives of the State
agency, of the Department, and of the U.S. General Accounting Office at
any reasonable time and place, for a period of 3 years from the date of
receipt of final payment under the contract, or in cases where an audit
requested by the State agency or the Department remains unresolved,
until such time as the audit is resolved;
(6) The food service management company shall operate in accordance
with current Program regulations;
(7) The food service management company shall not be paid for meals
which are delivered outside of the agreed upon delivery time, are
spoiled or unwholesome at the time of delivery, or do not otherwise meet
the meal requirements contained in the contract;
(8) Meals shall be delivered in accordance with a delivery schedule
prescribed in the contract;
(9) Increases and decreases in the number of meal orders may be made
by the institution, as needed, within a prior notice period mutually
agreed upon in the contract;
(10) All meals served under the Program shall meet the requirements
of Sec. 226.20;
(11) All breakfasts, lunches, and suppers delivered for service in
outside-school-hours care centers shall be unitized, with or without
milk, unless the
[[Page 195]]
State agency determines that unitization would impair the effectiveness
of food service operations. For meals delivered to child care centers
and day care homes, the State agency may require unitization, with or
without milk, of all breakfasts, lunches, and suppers only if the State
agency has evidence which indicates that this requirement is necessary
to ensure compliance with Sec. 226.20.
(j) Procurement provisions. State agencies shall require
institutions to adhere to the procurement provisions set forth in
Sec. 226.22.
(k) Institution appeal procedures. Except as provided in
Sec. 226.8(g), each State agency shall establish an appeal procedure to
be followed by an institution requesting a review of a denial of an
institution's application for participation, a denial of an application
submitted by a sponsoring organization on behalf of a facility, a
termination of the participation of an institution or facility, a
suspension of an institution's agreement, a denial of an institution's
application for start-up or expansion payments, a denial of an advance
payment, a denial of all or a part of the claim for reimbursement,
(except for late submission under Sec. 226.10(e)), a denial by the State
agency to forward to FNS an exception request by the institution or
sponsoring organization for payment of a late claim or a request for an
upward adjustment to a claim, demand for the remittance of an
overpayment, and any other action of the State agency affecting the
participation of an institution in the Program or the institution's
claim for reimbursement. State agencies may use their own State appeal
procedures provided the same procedures are applied to all appellants in
the State and the procedures meet the following requirements: Appellants
are assured of a fair and impartial hearing before an independent
official at which they may be represented by legal counsel; decisions
are rendered in a timely manner not to exceed 120 days from the date of
the receipt of the request for review; appellants are afforded the right
to either a review of the record with the right to file written
information, or a hearing which they may attend in person; and adequate
notice is given of the place, date and procedures of the hearing. The
appeal procedures adopted by the State agency shall be made available in
writing each year to all institutions at the time of application for
participation in the Program and upon request. If the State has not
established its own appeal procedures or the procedures do not meet the
above listed criteria, the State agency shall observe the following
procedures at a minimum:
(1) The institution shall be advised in writing of the grounds on
which the State agency based its action. The notice of action, which
shall be sent by certified mail, return receipt requested, shall also
include a statement indicating that the institution has the right to
appeal the action;
(2) The written request for review shall be filed by the appellant
not later than 15 calendar days from the date the appellant received the
notice of action, and the State shall acknowledge the receipt of the
request for appeal within 10 calendar days;
(3) The appellant may refute the charges contained in the notice of
action in person and by written documentation to the review official. In
order to be considered, written documentation must be filed with the
review official not later than 30 calendar days after the appellant
received the notice of action. The appellant may retain legal counsel,
or may be represented by another person. A hearing shall be held by the
review official in addition to, or in lieu of, a review of written
information submitted by the appellant only if the appellant so
specifies in the letter of request for review. Failure of the appellant
institution's representative to appear at a scheduled hearing shall
constitute the appellant institution's waiver of the right to a personal
appearance before the review official, unless the review official agrees
to reschedule the hearing. A representative of the State agency shall be
allowed to attend the hearing to respond to the appellant's testimony
and to answer questions posed by the review official;
(4) If the appellant has requested a hearing, the appellant and the
State agency shall be provided with at least
[[Page 196]]
10 calendar days advance written notice, sent by certified mail, return
receipt requested, of the time and place of the hearing;
(5) Any information on which the State agency's action was based
shall be available to the appellant for inspection from the date of
receipt of the request for review;
(6) The review official shall be an independent and impartial
official other than, and not accountable to, any person authorized to
make decisions that are subject to appeal under the provisions of this
section;
(7) The review offficial shall make a determination based on
information provided by the State agency and the appellant, and on
Program regulations;
(8) Within 60 calendar days of the State agency's receipt of the
request for review, the review official shall inform the State agency
and the appellant of the determination of the review;
(9) The State agency's action shall remain in effect during the
appeal process. However, participating institutions and facilities may
continue to operate under the Program during an appeal of termination,
unless the action is based on imminent dangers to the health or welfare
of participants. If the institution or facility has been terminated for
this reason, the State agency shall so specify in its notice of action.
Institutions electing to continue operating while appealing terminations
shall not be reimbursed for any meals served during the period of the
appeal if the State agency's action is upheld; and
(10) The determination by the State review official is the final
administrative determination to be afforded to the appellant.
(11) Appeals shall not be allowed on decisions made by FNS on
requests for exceptions to the claims submission deadlines stated in
Sec. 226.10(e) or requests for upward adjustments to claims.
(12) In cases where an appeal results in the dismissal of a claim
against an institution which was asserted by the State agency based upon
Federal audit findings, FNS may assert a claim against the State agency
in accordance with the procedures outlined in Sec. 226.14(c).
(l) Program assistance. Each State agency shall provide technical
and supervisory assistance to institutions and facilities to facilitate
effective Program operations, monitor progress toward achieving Program
goals, and ensure compliance with the Department's nondiscrimination
regulations (part 15 of this title) issued under title VI of the Civil
Rights Act of 1964. Documentation of supervisory assistance activities,
including reviews conducted, corrective actions prescribed, and follow-
up efforts, shall be maintained on file by the State agency. Program
reviews shall assess institutional compliance with the provisions of
this part and with any applicable instructions of FNS and the
Department. Program reviews shall include State agency evaluation of the
documentation used by sponsoring organizations to classify their day
care homes as tier I day care homes. State agencies shall annually
review 33.3 percent of all institutions. State agencies shall also
ensure that each institution is reviewed according to the following
schedule.
(1) Independent centers, sponsoring organizations of centers, and
sponsoring organizations of day care homes with 1 to 200 homes shall be
reviewed at least once every four years. Reviews of sponsoring
organizations shall include reviews of 15 percent of their child care,
adult day care and outside-school-hours care centers and 10 percent of
their day care homes.
(2) Sponsoring organizations with more than 200 homes shall be
reviewed at least once every two years. Reviews of such sponsoring
organizations shall include reviews of 5 percent of the first 1,000
homes and 2.5 percent of all homes in excess of 1,000.
(3) Reviews shall be conducted for newly participating sponsoring
organizations with five or more child care facilities or adult day care
facilities within the first 90 days of program operations.
(m) Program irregularities. Each State agency shall promptly
investigate complaints received or irregularities noted in connection
with the operation
[[Page 197]]
of the Program, and shall take appropriate action to correct any
irregularities. State agencies shall maintain on file evidence of such
investigations and actions. FNS and OIG may make investigations at the
request of the State agency, or whenever FNS or OIG determines that
investigations are appropriate.
(n) Child care standards compliance. The State agency shall, when
conducting administrative reviews of child care centers, outside-school-
hours care centers, and day care homes approved by the State agency
under paragraph (d)(3) of this section, determine compliance with the
child care standards used to establish eligibility, and the institution
shall ensure that all violations are corrected and the State shall
ensure that the institution has corrected all violations. If violations
are not corrected within 60 calendar days of written notification to the
institution, the State agency shall terminate the Program participation
of the violating institution or facility. However, if the health or
safety of the children is imminently threatened, the State agency may
immediately terminate participation of the institution or facility. If,
during an administrative review of a child care center, outside-school-
hours care center, or day care home not approved by the State agency
under paragraph (d)(3) of this section, the State agency observes
violations of applicable health, safety, or staff-child ratio standards,
or attendance in excess of licensed capacity, the State agency shall
promptly refer such violations to the appropriate authority. The State
agency may deny reimbursement for meals served to attending children in
excess of authorized capacity.
(o) Sponsoring organization agreement. Each State agency shall
develop and provide for the use of a standard form of agreement between
each day care home sponsoring organization and all day care homes
participating in the Program under such organization. However, the State
agency may, at the request of the sponsor, approve an agreement
developed by the sponsor. State agencies may develop a similar form for
use between sponsoring organizations and other types of facilities.
(p) Following its reviews of institutions and facilities under
Secs. 226.6(l) and 226.23(h) conducted prior to July 1, 1988, the State
agency shall report data on key elements of program operations on a form
designated by FNS. These key elements include but are not limited to the
program areas of meal requirements, determination of eligibility for
free and reduced price meals, and the accuracy of reimbursement claims.
These forms shall be submitted within 90 days of the completion of the
data collection for the institutions except that, if the State has
elected to conduct reviews of verification separate from its
administrative reviews, the State shall retain data until all key
elements have been reviewed and shall report all data for each
institution on one form within 90 days of the completion of the data
collection for all key elements for that institution. States shall
ensure that all key element data for an institution is collected during
a 12-month period.
[47 FR 36527, Aug. 20, 1982]
Editorial Note: For Federal Register citations affecting Sec. 226.6,
see the List of CFR Sections Affected appearing in the Finding Aids
section of this volume.
Sec. 226.7 State agency responsibilities for financial management.
(a) This section prescribes standards of financial management
systems in administering Program funds by the State agency and
institutions.
(b) Each State agency shall maintain an acceptable financial
management system, adhere to financial management standards and
otherwise carry out financial management policies as delineated in the
Uniform Federal Assistance Regulations, at 7 CFR part 3015. State
agencies or FNSRO's, where applicable, shall also have a system in place
for monitoring and reviewing the institutions' documentation of their
nonprofit status to ensure that all Program reimbursement funds are
used: (1) Solely for the conduct of the food service operation; or (2)
to improve such food service operations, principally for the benefit of
the participants.
(c) Management evaluations and audits. State agencies shall provide
FNS with full opportunity to conduct management evaluations (including
visits
[[Page 198]]
to institutions and facilities) of all operations of the State agency
under the Program and shall provide OIG with full opportunity to conduct
audits (including visits to institutions and facilities) of all
operations of the State agency under the Program. Within 60 calendar
days of receipt of each management evaluation report, the State agency
shall submit to FNSRO a written plan for correcting serious
deficiencies, including specific timeframes for accomplishing corrective
actions and initiating follow-up efforts. If a State agency makes a
showing of good cause, however, FNS may allow more than 60 days in which
to submit a plan. Each State agency shall make available its records,
including records of the receipt and expenditure of funds, upon request
by FNS or OIG. OIG shall also have the right to make audits of the
records and operation of any institution.
(d) Reports. Each State agency shall submit to FNS the final Report
of the Child and Adult Care Food Program (FNS 44) for each month which
shall be limited to claims submitted in accordance with Sec. 226.10(e)
and which shall be postmarked and/or submitted no later than 90 days
following the last day of the month covered by the report. States shall
not receive Program funds for any month for which the final report is
not submitted within this time limit unless FNS grants an exception.
Upward adjustments to a State agency's report shall not be made after 90
days from the month covered by the report unless authorized by FNS.
Downward adjustments shall always be made, without FNS authorization,
regardless of when it is determined that such adjustments are necessary.
Adjustments shall be reported to FNS in accordance with procedures
established by FNS. Each State agency shall also submit to FNS a
quarterly Financial Status Report (SF-269) on the use of Program funds.
Such reports shall be postmarked and/or submitted no later than 30 days
after the end of each fiscal year quarter. Obligations shall be reported
only for the fiscal year in which they occur. A final Financial Status
Report for each fiscal year shall be postmarked and/or submitted to FNS
within 120 days after the end of the fiscal year. FNS shall not be
responsible for reimbursing unpaid Program obligations reported later
than 120 days after the close of the fiscal year in which they were
incurred.
(e) Annual plan. Each State shall submit to the Secretary for
approval by August 15 of each year an annual plan for the use of State
administrative expense funds, including a staff formula for State
personnel.
(f) Rate assignment. Each State agency shall require institutions
(other than sponsoring organizations for day care homes) to submit, not
less frequently than annually, information necessary to assign rates of
reimbursement as outlined in Sec. 226.9.
(g) Administrative budget approval. The State agency shall approve
institution administrative budgets, and shall limit allowable
administrative costs claimed by each sponsoring organization for day
care homes to administrative costs approved in its annual budget. The
State agency may establish such administrative costs limits for other
institutions. Administrative budget levels may be adjusted to reflect
changes in Program activities.
(h) Start-up and expansion payments. Each State agency shall
establish procedures for evaluating requests for start-up and expansion
payments, issuing these payments to eligible sponsoring organizations,
and monitoring the use of these payments.
(i) Advance payments. Each State agency shall establish procedures
for issuing advance payments by the first day of each month and
comparing these payments with earned reimbursement on a monthly basis.
The State agency shall maintain on file a statement of the State's law
and policy governing the use of interest earned on advanced funds by
sponsors, institutions, child care facilities and adult day care
facilities.
(j) Recovery of overpayments. Each State agency shall establish
procedures to recover outstanding start-up, expansion and advance
payments from institutions which, in the opinion of the State agency,
will not be able to earn these payments.
(k) Claims processing. Each State agency shall establish procedures
for institutions to properly submit claims
[[Page 199]]
for reimbursement. All valid claims shall be paid within 45 calendar
days of receipt. Within 15 calendar days of receipt of any incomplete or
incorrect claim which must be revised for payment, the State agency
shall notify the institution as to why and how such claim must be
revised. If the State agency disallows partial or full payment for a
claim for reimbursement, it shall notify the institution which submitted
the claim of its right to appeal under Sec. 226.6(k). State agencies may
permit disallowances to be appealed separately from claims for
reimbursement.
(l) Participation controls. The State agency may establish control
procedures to ensure that payment is not made for meals served to
participants attending in excess of the authorized capacity of each
independent center, adult day care facility or child care facility.
(m) Financial management system. Each State agency shall establish a
financial management system in accordance with the Uniform Federal
Assistance Regulations, 7 CFR part 3015, and FNS guidance to identify
allowable Program costs and establish standards for institutional
recordkeeping and reporting. These standards shall (1) prohibit claiming
reimbursement for meals provided by a participant's family, except as
authorized by Sec. 226.18(e) and (2) allow the cost of meals served to
adults who perform necessary food service labor under the Program,
except in day care homes. The State agency shall provide guidance on
financial management requirements to each institution.
[47 FR 36527, Aug. 20, 1982, as amended at 48 FR 21530, May 13, 1983;
Amdt. 5, 49 FR 18988, May 4, 1984; 50 FR 8580, Mar. 4, 1985; 50 FR
26975, July 1, 1985; 53 FR 52589, Dec. 28, 1988; Amdt. 22, 55 FR 1378,
Jan. 14, 1990; 63 FR 9728, Feb. 26, 1998]
Sec. 226.8 Audits.
(a) Unless otherwise exempt, audits at the State and institution
levels shall be conducted in accordance with the Office of Management
and Budget's Circulars A-128 and A-110 and the Department's Uniform
Federal Assistance Regulations (7 CFR part 3015). Title XIX and title XX
proprietary institutions not subject to organization-wide audits shall
be audited by the State agency at least once every two years.
(b) The funds provided to the State agency under Sec. 226.4(h) may
be made available to institutions to fund a portion of organization-wide
audits, provided that the organization-wide audit includes tests of the
CACFP in accordance with section 10.558 of the Compliance Supplement to
OMB Circular A-128. The funds provided to an institution for an
organization-wide audit shall not exceed the portion of the audit's cost
equal to the CACFP's portion of the total Federal grant.
(c) Funds provided under Sec. 226.4(h) may be used by the State
agency to conduct program-specific audits of institutions not subject to
organization-wide audits, or for which the State agency considers
program specific audits to be needed. The State agency may use any funds
remaining after all required program-specific audits have been performed
to conduct administrative reviews of institutions.
(d) Funds provided under Sec. 226.4(h) may only be obligated during
the fiscal year for which those funds are allocated. If funds provided
under Sec. 226.4(h) are not sufficient to meet the requirements of this
section, the State agency may then use available State administrative
expense funds to conduct audits, provided that the State agency is
arranging for the audits and has not passed the responsibility down to
the institution.
(e) In conducting management evaluations or audits for any fiscal
year, FNS or OIG may disregard any overpayment which does not exceed
$100. In conducting State agency sponsored audits in State administered
programs, the State agency may disregard any overpayment which does not
exceed the amount established by State law, regulations or procedures as
a minimum for which claims will be made for State losses generally. No
overpayment shall be disregarded, however, where there are unpaid claims
of the same fiscal year from which the overpayment can be deducted, or
where there is evidence of violation of criminal law or civil fraud
statutes.
(f) While OIG shall rely to the fullest extent feasible upon State
sponsored
[[Page 200]]
audits, OIG may, whenever it considers necessary:
(1) Make audits on a statewide basis;
(2) Perform on-site test audits;
(3) Review audit reports and related working papers of audits
performed by or for State agencies.
(g) State agencies are not required to provide a hearing to an
institution for State actions taken on the basis of a Federal audit
determination. If a State agency does not provide a hearing in such
situations, FNS will provide a hearing, upon request, in accordance with
procedures set forth in Sec. 226.6(j) of this part.
[47 FR 36527, Aug. 20, 1982, as amended at 50 FR 8580, Mar. 4, 1985; 51
FR 4295, Feb. 4, 1986; 52 FR 5526, Feb. 25, 1987; 53 FR 52590, Dec. 28,
1988; Amdt. 22, 55 FR 1378, Jan. 14, 1990]
Subpart D--Payment Provisions
Sec. 226.9 Assignment of rates of reimbursement for centers.
(a) The State agency shall assign rates of reimbursement, not less
frequently than annually, on the basis of family-size and income
information reported by each institution. Assigned rates of
reimbursement may be changed more frequently than annually if warranted
by changes in family-size and income information. Assigned rates of
reimbursement shall be adjusted annually to reflect changes in the
national average payment rates.
(b) The State agency shall either:
(1) Require that institutions submit each month's figures for meals
served daily to participants from families meeting the eligibility
standards for free meals, to participants from families meeting the
eligibility standards for reduced-price meals, and to participants from
families not meeting such guidelines; or
(2) Establish claiming percentages, not less frequently that
annually, for each institution on the basis of the number of enrolled
participants eligible for free, reduced-price, and paid meals; or
(3) Determine a blended per-meal rate of reimbursement, not less
frequently than annually, by adding the products obtained by multiplying
the applicable national average payment rate of reimbursement for each
category (free, reduced-price, paid) by the claiming percentage for that
category.
(c) States have two methods of reimbursing institutions. The method
chosen by the State agency must be applied to all institutions
participating in the Program in that State. These methods are:
(1) Meals times rates payment, which involves reimbursing an
institution for meals served at the assigned rate for each meal. This
method entails no comparison to the costs incurred by the institution
for the meal service; and,
(2) Meals times rates or actual costs, whichever is the lesser,
which involves reimbursing an institution for meals served at the
assigned rate for each meal or at the level of the costs actually
incurred by the institution for the meal service. This method does
entail a comparison of the costs incurred to the meal rates, with the
costs being a limiting factor on the level of reimbursement an
institution may receive.
(d) In those States where the State agency has chosen the option to
implement a meals times rates payment system State-wide, the State
agency may elect to pay an institution's final claim for reimbursement
for the fiscal year at higher reassigned rates of reimbursement for
lunches and suppers; however, the reassigned rates may not exceed the
applicable maximum rates of reimbursement established under
Sec. 210.11(b) of the National School Lunch Program regulations. In
those States which use the method of comparing meals times rates or
actual costs, whichever is lesser, the total payments made to an
institution shall not exceed the total net costs incurred for the fiscal
year.
[47 FR 36527, Aug. 20, 1982, as amended at 48 FR 21530, May 13, 1983; 53
FR 52590, Dec. 28, 1988; Amdt. 22, 55 FR 1378, Jan. 14, 1990]
Sec. 226.10 Program payment procedures.
(a) By the first day of each month of operation, the State agency
shall provide an advance payment to each institution electing to receive
such payments, in accordance with Sec. 226.6(b)(10). Advance payments
shall equal the full level of claims estimated by the State agency to be
submitted in accordance
[[Page 201]]
with paragraph (c) of this section, considering prior reimbursement
claims and other information such as fluctuations in enrollment. The
institution may decline to receive all or any part of the advance.
(b) For each fiscal year, the amount of payment made, including
funds advanced to an institution, shall not exceed the amount of valid
reimbursement claimed by that institution. To ensure that institutions
do not receive excessive advance payments, the State agency shall
observe the following procedures:
(1) After three advance payments have been made to an institution,
the State agency shall ensure that no subsequent advance is made until
the State agency has validated the institution's claim for reimbursement
for the third month prior to the month for which the next advance is to
be paid.
(2) If the State agency has audit or monitoring evidence of
extensive program deficiencies or other reasons to believe that an
institution will not be able to submit a valid claim for reimbursement,
advance payments shall be withheld until the claim is received or the
deficiencies are corrected.
(3) Each month the State agency shall compare incoming claims
against advances to ensure that the level of funds authorized under
paragraph (a) of this section does not exceed the claims for
reimbursement received from the institution. Whenever this process
indicates that excessive advances have been authorized, the State agency
shall either demand full repayment or adjust subsequent payments,
including advances.
(4) If, as a result of year end reconciliation as required by the
Department's Uniform Federal Assistance Regulations (7 CFR part 3015),
the State agency determines that reimbursement earned by an institution
during a fiscal year is less than the amount paid, including funds
advanced to that institution, the State agency shall demand repayment of
the outstanding balance or adjust subsequent payments.
(c) Claims for Reimbursement shall report information in accordance
with the financial management system established by the State agency,
and in sufficient detail to justify the reimbursement claimed and to
enable the State agency to provide the final Report of the Child and
Adult Care Food Program (FNS 44) required under Sec. 226.7(d). In
submitting a Claim for Reimbursement, each institution shall certify
that the claim is correct and that records are available to support that
claim. Independent proprietary title XX child care centers shall submit
the number and percentage of the enrolled participants, or the licensed
capacity receiving title XX benefits for the month claimed for months in
which not less than 25 percent of the enrolled children or 25 percent of
licensed capacity, whichever is less, were title XX beneficiaries.
Sponsoring organizations of such child care centers shall submit the
number and percentage of the enrolled children or licensed capacity,
whichever is less, receiving title XX benefits for each center for the
claim. Sponsoring organizations of such centers shall not submit claims
for child care centers in which less than 25 percent of the enrolled
children and licensed capacity were title XX beneficiaries for the month
claimed. Independent proprietary title XIX or title XX adult day care
centers shall submit the percentages of enrolled adult participants
receiving title XIX or title XX benefits for the month claimed for
months in which not less than 25 percent of enrolled adult participants
were title XIX or title XX beneficiaries. Sponsoring organizations of
such adult day care centers shall submit the percentage of enrolled
adult participants receiving title XIX or title XX benefits for each
center for the claim. Sponsoring organizations of such centers shall not
submit claims for adult day care centers in which less than 25 percent
of enrolled adult participants were title XIX or title XX beneficiaries
for the month claimed.
(d) All records to support the claim shall be retained for a period
of three years after the date of submission of the final claim for the
fiscal year to which they pertain, except that if audit findings have
not been resolved, the records shall be retained beyond the end of the
three year period as long as may be required for the resolution of
[[Page 202]]
the issues raised by the audit. All accounts and records pertaining to
the Program shall be made available, upon request, to representatives of
the State agency, of the Department, and of the U.S. General Accounting
Office for audit or review, at a reasonable time and place.
(e) Unless otherwise approved by FNS, the Claim for Reimbursement
for any month shall cover only Program operations for that month except
if the first or last month of Program operations in any fiscal year
contains 10 operating days or less, such month may be added to the Claim
for Reimbursement for the appropriate adjacent month; however, Claims
for Reimbursement may not combine operations occurring in two fiscal
years. A final Claim for Reimbursement shall be postmarked and/or
submitted to the State agency not later than 60 days following the last
day of the full month covered by the claim. State agencies may establish
shorter deadlines at their discretion. Claims not postmarked and/or
submitted within 60 days shall not be paid with Program funds unless FNS
determines that an exception should be granted. The State agency shall
promptly take corrective action with respect to any Claim for
Reimbursement as determined necessary through its claim review process
or otherwise. In taking such corrective action, State agencies may make
upward adjustments in Program funds claimed on claims filed within the
60 day deadline if such adjustments are completed within 90 days of the
last day of the claim month and are reflected in the final Report of the
Child and Adult Care Food Programs (FNS-44) for the claim month which is
required under 226.7(d). Upward adjustments in Program funds claimed
which are not reflected in the final FNS-44 for the claim month shall
not be made unless authorized by FNS. Downward adjustments in Program
funds claimed shall always be made without FNS authorization regardless
of when it is determined that such adjustments are necessary.
(f) If a State agency has reason to believe that an institution or
food service management company has engaged in unlawful acts with
respect to Program Operations, evidence found in audits, investigations
or other reviews shall be a basis for non-payment of claims for
reimbursement.
[47 FR 36527, Aug. 20, 1982, as amended by Amdt. 5, 49 FR 18988, May 4,
1984; 50 FR 26975, July 1, 1985; 53 FR 52590, Dec. 28, 1988; Amdt. 22,
55 FR 1378, Jan. 14, 1990; 62 FR 23618, May 1, 1997]
Sec. 226.11 Program payments for child care centers, adult day care centers and outside-school-hours care centers.
(a) Payments shall be made only to institutions operating under an
agreement with the State agency for the meal types specified in the
agreement served at approved child care centers, adult day care centers
and outside-school-hours care centers. A State agency may make payment
for meals served in accordance with provisions of the Program in the
calendar month preceding the calendar month in which the agreement is
executed.
(b) Each child care institution shall report each month to the State
agency the total number of meals, by type (breakfasts, lunches, suppers,
and supplements), served to children, except that such reports shall be
made for a proprietary title XX center only for calendar months during
which not less than 25 percent of enrolled children, or 25 percent of
licensed capacity, whichever is less, were title XX beneficiaries. Each
adult day care institution shall report each month to the State agency
the total number of meals, by type (breakfasts, lunches, suppers, and
supplements), served to adult participants, except that such reports
shall be made for a proprietary title XIX or title XX center only for
calendar months during which no less than 25 percent of enrolled adult
participants were title XIX or title XX beneficiaries.
(c) Each State agency shall base reimbursement to each child care
institution on the number of meals, by type, served to children
multiplied by the assigned rates of reimbursement, except that
reimbursement shall be payable to proprietary title XX child care
centers only for calendar months during which not less than 25 percent
of enrolled children, or 25 percent of licensed capacity, whichever is
less, were
[[Page 203]]
title XX beneficiaries. Each State agency shall base reimbursement to
each adult day care institution on the number of meals, by type, served
to adult participants multiplied by the assigned rates of reimbursement,
except that reimbursement shall be payable to proprietary title XIX and
title XX adult day care centers only for calendar months during which
not less than 25 percent of enrolled adult participants were title XIX
or Title XX beneficiaries. In computing reimbursement, the State agency
shall either:
(1) Base reimbursement to institutions on actual daily counts of
meals served, and multiply the number of meals, by type, served to
participants eligible to receive free meals, served to participants
eligible to receive reduced-price meals, and served to participants from
families not meeting such standards by the applicable national average
payment rate; or
(2) Apply the applicable claiming percentage or percentages to the
total number of meals, by type, served to participants and multiply the
product or products by the assigned rate of reimbursement for each meal
type; or
(3) Multiply the assigned blended per meal rate of reimbursement by
the total number of meals, by type, served to participants.
(d) If the State agency elects to reimburse its institutions
according to the lesser of rates or actual costs, total Program payments
to an institution during any fiscal year, including any cash payments in
lieu of commodities, shall not exceed allowable Program operating and
administrative costs, less income to the Program. The State agency may
limit payments for administrative costs to the amount approved in the
annual administrative budget of the institution. The State agency may
prohibit an institution from using payments for operating costs to pay
for administrative expenses.
(e) Each institution shall maintain records as prescribed by the
State agency's financial management system.
[47 FR 36527, Aug. 20, 1982, as amended at 48 FR 21530, May 13, 1983; 52
FR 36907, Oct. 2, 1987; 53 FR 52590, Dec. 28, 1988; 62 FR 23618, May 1,
1997]
Sec. 226.12 Administrative payments to sponsoring organizations for day care homes.
(a) General. Sponsoring organizations for day care homes shall
receive payments for administrative costs. During any fiscal year,
administrative costs payments to a sponsoring organization may not
exceed the lesser of (1) actual expenditures for the costs of
administering the Program less income to the Program, or (2) the amount
of administrative costs approved by the State agency in the sponsoring
organization's budget, or (3) the sum of the products obtained by
multiplying each month the sponsoring organization's:
(i) Initial 50 day care homes by 42 dollars;
(ii) Next 150 day care homes by 32 dollars;
(iii) Next 800 day care homes by 25 dollars; and
(iv) Additional day care homes by 22 dollars.
During any fiscal year, administrative payments to a sponsoring
organization may not exceed 30 percent of the total amount of
administrative payments and food service payments for day care home
operations.
(b) Start-up and expansion payments. (1) Prospective sponsoring
organizations of day care homes, participating sponsoring organizations
of child care centers or outside-school-hours care centers, independent
centers, and participating sponsoring organizations of less than 50
homes which meet the criteria in paragraph (b)(2) of this section shall
be entitled to receive start-up payments to develop or expand successful
Program operations in day care homes. Participating sponsoring
organizations of day care homes which meet the criteria in paragraph
(b)(2) of this section shall be entitled to receive expansion payments
to initiate or expand Program operations in day care homes in low-income
or rural areas. The State agency shall approve start-up payments only
once for any eligible sponsoring organization, but may approve expansion
payments for any eligible sponsoring organization more than once,
provided that: the request must be for expansion into an area(s) other
than that specified in their initial or prior request; and 12 months has
[[Page 204]]
elapsed since the sponsoring organization has satisfied all obligations
under its initial or prior expansion agreement. Eligible sponsoring
organizations which have received start-up payments shall be eligible to
apply for expansion payments at a date no earlier than 12 months after
it has satisfied all its obligations under its start-up agreement with
the State agency.
(2) Sponsoring organizations which apply for start-up or expansion
payments shall evidence:
(i) Public or tax-exempt status, or moving toward compliance with
the requirements for IRS tax-exempt status, in accordance with
Sec. 226.15(a);
(ii) An organizational history of managing funds and ongoing
activities (i.e., administering public or private programs);
(iii) An acceptable and realistic plan for recruiting day care homes
to participate in the Program (such as the method of contacting
providers), which may be based on estimates of the number of day care
homes to be recruited and information supporting their existence, and in
the case of sponsoring organizations applying for expansion payments,
documentation that the day care homes to be recruited are located in
low-income or rural areas; and
(iv) An acceptable preliminary sponsoring organization management
plan including, but not limited to, plans for preoperational visits and
training.
(3) The State agency shall deny start-up and expansion payments to
applicant sponsoring organizations which fail to meet the criteria of
paragraph (b)(2) of this section or which have not been financially
responsible in the operation of other programs funded by Federal, State,
or local governments. The State agency shall notify the sponsoring
organization of the reasons for denial and allow the sponsoring
organization full opportunity to submit evidence on appeal as provided
for in Sec. 226.6(k). Any sponsoring organization applying for start-up
or expansion funds shall be notified of approval or disapproval by the
State agency in writing within 30 calendar days of filing a complete and
correct application. If a sponsoring organization submits an incomplete
application, the State agency shall notify the sponsoring organization
within 15 calendar days of receipt of the application and shall provide
technical assistance, if necessary, to the sponsoring organization for
the purpose of completing its application.
(4) Sponsoring organizations which apply for and meet the criteria
for start-up or expansion payments shall enter into an agreement with
the State agency. The agreement shall specify:
(i) Activities which the sponsoring organization will undertake to
initiate or expand Program operations in day care homes;
(ii) The amount of start-up or expansion payments to be issued to
the sponsoring organization, together with an administrative budget
detailing the costs which the sponsoring organization shall incur,
document, and claim;
(iii) The time allotted to the sponsoring organization for the
initiation or expansion of Program operations in family day care homes;
(iv) The responsibility of the applicant sponsoring organization to
repay, upon demand by the State agency, start-up or expansion payments
not expended in accordance with the agreement.
(5) Upon execution of the agreement, the State agency shall issue a
start-up or expansion payment to the sponsoring organization in an
amount equal to not less than one, but not more than two month's
anticipated administrative reimbursement to the sponsoring organization
as determined by the State agency. However, no sponsoring organization
may receive start-up or expansion payments for more than 50 day care
homes. Eligible sponsoring organizations with fewer than 50 homes under
their jurisdiction at the time of application for start-up payments may
receive such payments for up to 50 homes, less the number of homes under
their jurisdiction. Eligible sponsoring organizations applying for
expansion funds may receive at a maximum such payments for up to 50
homes at the currently assigned administrative payment for the first 50
homes. In determining the amount of start-up or expansion payments to be
made to a sponsoring organization, the State agency shall consider the
anticipated level of start-up or expansion costs to
[[Page 205]]
be incurred by the sponsoring organization and alternate sources of
funds available to the sponsoring organization.
(6) Upon expiration of the time allotted to the sponsoring
organization for initiating or expanding Program operations in day care
homes, the State agency shall obtain and review documentation of
activities performed and costs incurred by the sponsoring organization
under the terms of the start-up or expansion agreement. If the
sponsoring organization has not made every reasonable effort to carry
out the activities specified in the agreement, the State agency shall
demand repayment of all or part of the payment. The sponsoring
organization may retain start-up or expansion payments for all day care
homes which initiate Program operations. However, no sponsoring
organization may retain any start-up or expansion payments in excess of
its actual costs for the expenditures specified in the agreement.
[47 FR 36527, Aug. 20, 1982; 47 FR 46072, Oct. 15, 1982, as amended at
53 FR 52590, Dec. 28, 1988; 63 FR 9728, Feb. 26, 1998]
Sec. 226.13 Food service payments to sponsoring organizations for day care homes.
(a) Payments shall be made only to sponsoring organizations
operating under an agreement with the State agency for the meal types
specified in the agreement served to enrolled nonresident children and
eligible enrolled children of day care home providers, at approved day
care homes.
(b) Each sponsoring organization shall report each month to the
State agency the total number of meals, by type (breakfasts, lunches,
suppers, and supplements) and by category (tier I and tier II), served
to children enrolled in approved day care homes.
(c) Each sponsoring organization shall receive payment for meals
served to children enrolled in approved day care homes at the tier I and
tier II reimbursement rates, as applicable, and as established by law
and adjusted in accordance with Sec. 226.4. However, the rates for
lunches and suppers shall be reduced by the value of commodities
established under Sec. 226.5(b) for all sponsoring organizations for day
care homes which have elected to receive commodities. For tier I day
care homes, the full amount of food service payments shall be disbursed
to each day care home on the basis of the number of meals served, by
type, to enrolled children. For tier II day care homes, the full amount
of food service payments shall be disbursed to each day care home on the
basis of the number of meals served to enrolled children by type, and by
category (tier I and tier II) as determined in accordance with
paragraphs (d)(2) and (d)(3) of this section. However, the sponsoring
organization may withhold from Program payments to each home an amount
equal to costs incurred for the provision of Program foodstuffs or meals
by the sponsoring organization on behalf of the home and with the home
provider's written consent.
(d) As applicable, each sponsoring organization for day care homes
shall:
(1) Require that tier I day care homes submit the number of meals
served, by type, to enrolled children.
(2) Require that tier II day care homes in which the provider elects
not to have the sponsoring organization identify enrolled children who
are eligible for free or reduced price meals submit the number of meals
served, by type, to enrolled children.
(3) Not more frequently than annually, select one of the methods
described in paragraphs (d)(3) (i)-(iii) of this section for all tier II
day care homes in which the provider elects to have the sponsoring
organization identify enrolled children who are eligible for free or
reduced price meals. In such homes, the sponsoring organization shall
either:
(i) Require that such day care homes submit the number and types of
meals served each day to each enrolled child by name. The sponsoring
organization shall use the information submitted by the homes to produce
an actual count, by type and by category (tier I and tier II), of meals
served in the homes; or
(ii) Establish claiming percentages, not less frequently than
semiannually, for each such day care home on the basis of one month's
data concerning the number of enrolled children determined eligible for
free or reduced-price meals. Sponsoring organizations shall
[[Page 206]]
obtain one month's data by collecting either enrollment lists (which
show the name of each enrolled child in the day care home), or
attendance lists (which show, by days or meals, the rate of
participation of each enrolled child in the day care home). The State
agency may require a sponsoring organization to recalculate the claiming
percentage for any of its day care homes before the required semiannual
calculation if the State agency has reason to believe that a home's
percentage of income-eligible children has changed significantly or was
incorrectly established in the previous calculation. Under this system,
day care homes shall be required to submit the number of meals served,
by type, to enrolled children; or
(iii) Determine a blended per-meal rate of reimbursement, not less
frequently than semiannually, for each such day care home by adding the
products obtained by multiplying the applicable rates of reimbursement
for each category (tier I and tier II) by the claiming percentage for
that category, as established in accordance with paragraph (d)(3)(ii) of
this section. The State agency may require a sponsoring organization to
recalculate the blended rate for any of its day care homes before the
required semiannual calculation if the State agency has reason to
believe that a home's percentage of income-eligible children has changed
significantly or was incorrectly established in the previous
calculation. Under this system, day care homes shall be required to
submit the number of meals served, by type, to enrolled children.
[47 FR 36527, Aug. 20, 1982, as amended at 62 FR 903, Jan. 7, 1997; 62
FR 5519, Feb. 6, 1997; 63 FR 9105, Feb. 24, 1998]
Sec. 226.14 Claims against institutions.
(a) State agencies shall disallow any portion of a claim for
reimbursement and recover any payment to an institution not properly
payable under this part. State agencies may consider claims for
reimbursement not properly payable if an institution does not comply
with the recordkeeping requirements contained in this part. In addition,
except with approval from the appropriate FNSRO, State agencies shall
consider claims for reimbursement not payable when an institution fails
to comply with the recordkeeping requirements that pertain to records
directly supporting claims for reimbursement. Records that directly
support claims for reimbursement include, but are not limited to, daily
meal counts, menu records, and enrollment and attendance records, as
required by Sec. 226.15(e). State agencies shall assert overclaims
against any sponsoring organization of day care homes which
misclassifies a day care home as a tier I day care home unless the
misclassification is determined to be inadvertent under guidance issued
by FNS. However, the State agency shall notify the institution of the
reasons for any disallowance or demand for repayment, and allow the
institution full opportunity to submit evidence on appeal as provided
for in Sec. 226.6(k). Miminum State agency collection procedures for
unearned payments shall include:
(1) Written demand to the institution for the return of improper
payments; (2) if, after 30 calendar days, the institution fails to remit
full payment or agree to a satisfactory repayment schedule, a second
written demand for the return of improper payments sent by certified
mail return receipt requested; and (3) if, after 60 calendar days, the
institution fails to remit full payment or agree to a satisfactory
repayment schedule, the State agency shall refer the claim against the
institution to appropriate State or Federal authorities for pursuit of
legal remedies.
(b) In the event that the State agency finds that an institution
which prepares its own meals is failing to meet the meal requirements of
Sec. 226.20, the State agency need not disallow payment or collect an
overpayment arising out of such failure if the institution takes such
other action as, in the opinion of the State agency, will have a
corrective effect. However, the State agency shall not disregard any
overpayments or waive collection action arising from the findings of
Federal audits.
(c) If FNS does not concur with the State agency's action in paying
an institution or in failing to collect an overpayment, FNS shall notify
the State agency of its intention to assert
[[Page 207]]
a claim against the State agency. In all such cases, the State agency
shall have full opportunity to submit evidence concerning the action
taken. The State agency shall be liable to FNS for failure to collect an
overpayment, unless FNS determines that the State agency has conformed
with this part in issuing the payment and has exerted reasonable efforts
to recover the improper payment.
[47 FR 36527, Aug. 20, 1982; 47 FR 46072, Oct. 15, 1982, as amended at
50 FR 8580, Mar. 4, 1985; 53 FR 52590, Dec. 28, 1988; 62 FR 903, Jan. 7,
1997; 64 FR 72260, Dec. 27, 1999]
Effective Date Note: At 64 FR 72260, Dec. 27, 1999, Sec. 226.14 was
amended by adding three sentences after the first sentence in the
introductory text of paragraph (a), effective Jan. 26, 2000.
Subpart E--Operational Provisions
Sec. 226.15 Institution provisions.
(a) Tax-exempt status. Except for proprietary title XIX and title XX
centers, and sponsoring organizations of such centers, institutions
shall be public, or have tax-exempt status under the Internal Revenue
Code of 1986, or be moving toward compliance with the requirements for
tax-exempt status, or be currently operating another Federal program
requiring nonprofit status. An institution which has applied to IRS for
tax-exempt status may participate in the program while its application
is pending review by IRS. It shall, however, be the responsibility of
the institution to document that it has complied with all requirements
of IRS and has provided all information requested. If IRS denies the
application for tax-exempt status, the institution shall immediately
notify the State agency of such denial. The State agency shall then
terminate the participation of the institution. If IRS certification of
tax-exempt status has not been received within 12 months of filing the
application with IRS, and IRS indicates that the institution has failed
to provide all required information, the State agency shall terminate
the participation of the institution until such time as IRS tax-exempt
status is obtained.
(b) Applications. Each institution shall submit to the State agency
all information required for its approval. As a minimum, such
information shall include:
(1) Except for proprietary title XIX and title XX centers and
sponsoring organizations or proprietary title XIX and title XX centers,
evidence of nonprofit status, in accordance with Sec. 226.15(a).
(2) An application for participation, or application renewal
materials, accompanied by all necessary supporting documentation;
(3) An administrative budget;
(4) If an independent child care center or independent outside-
school-hours care center, documentation that it meets the licensing/
approval requirements of Sec. 226.6(d)(1); or, if an independent adult
day care center, the licensing/approval requirements of
Sec. 226.19a(b)(3).
(5) A nondiscrimination and free and reduced-price policy statement,
and information regarding a public release, in accordance with
Sec. 226.23; and
(6) For each proprietary title XX child care center, documentation
that it provides nonresidential day care services for which it receives
compensation under title XX of the Social Security Act, and
certification that not less than 25 percent of the enrolled children, or
25 percent of the licensed capacity, whichever is less, during the most
recent calendar month were title XX beneficiaries. For each proprietary
title XIX or title XX adult day care center, documentation that it
provides nonresidential day care services for which it receives
compensation under title XIX or title XX of the Social Security Act, and
certification that not less than 25 percent of the adult participants
enrolled during the most recent calendar month were title XIX or title
XX beneficiaries. Sponsoring organizations shall provide documentation
and certification for each proprietary title XIX or title XX center
under its jurisdiction.
(c) Responsibility. Each institution shall accept final
administrative and financial responsibility for Program operations. No
institution may contract out for management of the Program.
[[Page 208]]
(d) Staffing. Each institution shall provide adequate supervisory
and operational personnel for management and monitoring of the Program.
(e) Recordkeeping. Each institution shall establish procedures to
collect and maintain all program records required under this part, as
well as any records required by the State agency. Failure to maintain
such records shall be grounds for the denial of reimbursement for meals
served during the period covered by the records in question and for the
denial of reimbursement for costs associated with such records. At a
minimum, the following records shall be collected and maintained:
(1) Copies of all applications and supporting documents submitted to
the State agency;
(2) Documentation of the enrollment of each participant at child
care centers, adult day care centers and outside-school-hours care
centers including information used to determine eligibility for free or
reduced price meals in accordance with Sec. 226.23(e)(1).
(3) Documentation of: The enrollment of each child at day care
homes; information used to determine the eligibility of enrolled
providers' children for free or reduced price meals; information used to
classify day care homes as tier I day care homes, including official
source documentation obtained from school officials when the
classification is based on elementary school data; and information used
to determine the eligibility of enrolled children in tier II day care
homes that have been identified as eligible for free or reduced price
meals in accordance with Sec. 226.23(e)(1).
(4) Daily records indicating the number of participants in
attendance and the number of meals, by type (breakfast, lunch, supper,
and supplements), served to participants.
(5) For child care centers and outside-school-hours care centers
claiming reimbursement for two meals and two supplements or three meals
and one supplement per child per day, either:
(i) Documentation of total time-in-attendance for each child at the
center for each day for which the fourth meal service was claimed,
including a time-in/time-out form which records time-in-attendance for
each child at the center; or, at the discretion of the State agency,
(ii) Documentation which demonstrates that at least eight hours
elapse between the end of the first meal service and the beginning of
the fourth meal service on any day in which reimbursement is claimed for
a fourth meal; service.
(6) Except at day care homes, daily records indicating the number of
meals, by type, served to adults performing labor necessary to the food
service;
(7) Copies of invoices, receipts, or other records required by the
State agency financial management instruction to document:
(i) Administrative costs claimed by the institution;
(ii) Operating costs claimed by the institution except sponsoring
organizations of day care homes; and
(iii) Income to the Program.
(8) Copies of all claims for reimbursement submitted to the State
agency;
(9) Receipts for all Program payments received from the State
agency;
(10) If applicable, information concerning the dates and amounts of
disbursement to each child care facility or adult day care facility
under its auspices;
(11) Copies of menus, and any other food service records required by
the State agency;
(12) If applicable, information concerning the location and dates of
each child care or adult day care facility review, any problems noted,
and the corrective action prescribed and effected;
(13) Information on training session date(s) and location(s), as
well as topics presented and names of participants; and
(14) Documentation of nonprofit food service to ensure that all
Program reimbursement funds are used: (i) Solely for the conduct of the
food service operation; or (ii) to improve such food service operations,
principally for the benefit of the enrolled participants.
(f) Day care home classifications. Each sponsoring organization of
day care homes shall determine which of the day care homes under its
sponsorship are eligible as tier I day care homes. A sponsoring
organization may use current school or census data provided by
[[Page 209]]
the State agency or free and reduced price applications collected from
day care home providers in making a determination for each day care
home. When using elementary school or census data for making tier I day
care home determinations, a sponsoring organization shall first consult
school data, except in cases in which busing or other bases of
attendance, such as magnet or charter schools, result in school data not
being representative of an attendance area's household income levels. In
these cases, census data should generally be consulted instead of school
data. A sponsoring organization may also use census data if, after
reasonable efforts are made, as defined by the State agency, the
sponsoring organization is unable to obtain local elementary school
attendance area information. A sponsoring organization may also consult
census data after having consulted school data which fails to support a
tier I day care home determination for rural areas with geographically
large elementary school attendance areas, for other areas in which an
elementary school's free and reduced price enrollment is above 40
percent, or in other cases with State agency approval. However, if a
sponsoring organization believes that a segment of an otherwise eligible
elementary school attendance area is above the criteria for free or
reduced price meals, then the sponsoring organization shall consult
census data to determine whether the homes in that area qualify as tier
I day care homes based on census data. If census data does not support a
tier I classification, then the sponsoring organization shall reclassify
homes in segments of such areas as tier II day care homes unless the
individual providers can document tier I eligibility on the basis of
their household income. When making tier I day care home determinations
based on school data, a sponsoring organization shall use attendance
area information that it has obtained, or verified with appropriate
school officials to be current, within the last school year.
Determinations of a day care home's eligibility as a tier I day care
home shall be valid for one year if based on a provider's household
income, three years if based on school data, or until more current data
are available if based on census data. However, a sponsoring
organization, State agency, or FNS may change the determination if
information becomes available indicating that a home is no longer in a
qualified area. The State agency shall not routinely require annual
redeterminations of the tiering status of tier I day care homes based on
updated elementary school data.
(g) Claims submission. Each institution shall submit claims for
reimbursement to the State agency in accordance with Sec. 226.10.
(h) Program agreement. Each institution shall enter into a Program
agreement with the State agency in accordance with Sec. 226.6(f)(1).
(i) Commodities. Each institution receiving commodities shall ensure
proper commodity utilization.
(j) Special Milk Program. No institution may participate in both the
Child and Adult Care Food Program and the Special Milk Program at the
same time.
(k) Elderly feeding programs. Institutions which are school food
authorities (as defined in part 210 of this chapter) may use facilities,
equipment and personnel supported by funds provided under this part to
support a nonprofit nutrition program for the elderly, including a
program funded under the Older Americans Act of 1965 (42 U.S.C. 3001 et
seq.).
[47 FR 36527, Aug. 20, 1982, as amended at 48 FR 21530, May 13, 1983; 50
FR 8580, Mar. 4, 1985; 52 FR 15298, Apr. 28, 1987; 52 FR 36907, Oct. 2,
1987; 53 FR 52590, Dec. 28, 1988; 54 FR 26724, June 26, 1989; Amdt. 22,
55 FR 1378, Jan. 14, 1990; 56 FR 58174, Nov. 16, 1991; 61 FR 25554, May
22, 1996; 62 FR 903, Jan. 7, 1997; 62 FR 23619, May 1, 1997; 63 FR 9105,
Feb. 24, 1998; 64 FR 72260, Dec. 27, 1999]
Effective Date Note: At 64 FR 72260, Dec. 27, 1999, Sec. 226.15 was
amended by revising the introductory text of paragraph (e); by
redesignating paragraphs (e)(10), (e)(11) and (e)(12) as paragraphs
(e)(11), (e)(13) and (e)(14), respectively; by adding paragraphs (e)(10)
and (e)(12); by removing``and'' at the end of paragraph (e)(11); by
adding ``and'' after the semicolon at the end of paragraph (e)(13); and
by removing ``Maintain documentation'' and adding ``Documentation'' in
their place in paragraph (e)(14), effective Jan. 26, 2000. For the
convenience of the user, the superseded text follows.
[[Page 210]]
Subpart E--Operational Provisions
Sec. 226.15 Institution provisions.
* * * * *
(e) Recordkeeping Each institution shall establish procedures to
collect and maintain all necessary Program records. Such records shall
include:
* * * * *
Sec. 226.16 Sponsoring organization provisions.
(a) Each sponsoring organization shall comply with all provisions of
Sec. 226.15.
(b) Each sponsoring organization shall submit to the State agency
all information required for its approval and the approval of all child
care and adult day care facilities under its jurisdiction, including:
(1) A sponsoring organization management plan, in accordance with
Sec. 226.6(f)(2);
(2) An application for participation, or renewal materials, for each
child care and adult day care facility accompanied by all necessary
supporting documentation; and
(3) Timely information concerning the eligibility status of child
care and adult day care facilities (such as licensing/approval actions).
(c) Each sponsoring organization shall accept final administrative
and financial responsibility for food service operations in all child
care and adult day care facilities under its jurisdiction.
(d) Each sponsoring organization shall provide adequate supervisory
and operational personnel for the effective management and monitoring of
the program at all child care and adult day care facilities under its
jursidiction. At a minimum, such Program assistance shall include:
(1) Pre-approval visits to each child care and adult day care
facility for which application is made to discuss Program benefits and
verify that the proposed food service does not exceed the capability of
the child care facility;
(2) Staff training for all child care and adult day care facilities
in Program duties and responsibilities prior to beginning Program
operations;
(3) Additional training sessions, to be provided not less frequently
than annually; and
(4) Reviews of food service operations to assess compliance with
meal pattern, recordkeeping, and other Program requirements. Such
reviews shall be made not less frequently than:
(i) Three times each year at each child care center and adult day
care center, provided at least one review is made during each child care
or adult day care center's first six weeks of Program operations and not
more than six months elapse between reviews;
(ii) Three times each year at each day care home, provided at least
one review is made during each day care home's first four weeks of
Program operations and not more than six months elapse between reviews.
However, based on case-by-case findings by the State agency that
improved efficiency and more effective management will result and
subject to FNSRO approval, State agencies may allow some or all of their
sponsors to conduct reviews an average of three times each year per day
care home, provided that each day care home is reviewed at least twice
each year, at least one review is made during each day care home's first
four weeks of Program operations, and no more than six months elapse
between reviews; and
(iii) Six times each year for each outside-school-hours care center,
provided at least one review is made during each outside-school-hours
care center's first four weeks of Program operations and not more than
three months elapse between reviews.
(e) Each sponsoring organization shall comply with the recordkeeping
requirements established in Sec. Sec. 226.10(d) and 226.15(e) and any
recordkeeping requirements established by the State agency in order to
justify the administrative payments made in accordance with
Sec. 226.12(a). Failure to maintain such records shall be grounds for
the denial of reimbursement.
(f) The State agency may require a sponsoring organization to enter
into separate agreements for the administration of separate types of
facilities (child care centers, day care homes, adult day care centers,
and outside-school-hours care centers).
[[Page 211]]
(g) Each sponsoring organization electing to receive advance
payments of program funds for day care homes shall disburse the full
amount of such payments within five working days of receipt from the
State agency. If the sponsor requests the full operating advance to
which it is entitled, the advances to day care homes shall be the full
amount which the sponsor expects the home to earn based on the number of
meals projected to be served to enrolled children during the period
covered by the advance multiplied by the applicable payment rate as
specified in Sec. 226.13(c). If a sponsor elects to receive only a part
of the operating advance to which it is entitled, or if the full
operating advance is insufficient to provide a full advance to each
home, the advance shall be disbursed to its homes in a manner and an
amount the sponsor deems appropriate. Each sponsor shall disburse any
reimbursement payments for food service due to each day care home within
five working days of receipt from the State agency. Such payment shall
be based on the number of meals served to enrolled children at each day
care home, less any payments advanced to such home. However, the
sponsoring organization may withhold from Program payments to each home
an amount equal to food service operating costs incurred by the
sponsoring organization in behalf of the home and with the home
provider's written consent. If payments from the State agency are not
sufficient to provide all day care homes under the sponsoring
organization's jurisdiction with advance payments and reimbursement
payments, available monies shall be used to provide all due
reimbursement payments before advances are disbursed.
(h) Sponsoring organizations shall make payments of program funds to
child care centers, adult day care centers or outside-school-hours care
centers within five working days of receipt from the State agency, on
the basis of the management plan approved by the State agency, and may
not exceed the Program costs documented at each facility during any
fiscal year; except in those States where the State agency has chosen
the option to implement a meals times rates payment system. In those
States which implement this optional method of reimbursement, such
disbursements may not exceed the rates times the number of meals
documented at each facility during any fiscal year.
(i) Disbursements of advance payments may be withheld from child and
adult day care facilities which fail to submit reports required by
Sec. 226.15(e).
(j) A for-profit organization shall be eligible to serve as a
sponsoring organization for proprietary title XIX or title XX centers
which have the same legal identity as the organization, but shall not be
eligible to sponsor proprietary title XIX or title XX centers which are
legally distinct from the organization, day care homes, or public or
private nonprofit centers.
(k) Before sponsoring organizations expend administrative funds to
assist family day care homes in becoming licensed, they shall obtain the
following information from each such home: a completed free and reduced
price application which documents that the provider meets the Program's
income standards; evidence of its application for licensing and official
documentation of the defects that are impeding its licensing approval;
and a completed CACFP application. These funding requests are limited to
$300 per home and are only available to each home once.
[47 FR 36527, Aug. 20, 1982; 47 FR 46072, Oct. 15, 1982, as amended at
48 FR 21530, May 13, 1983; 50 FR 8580, Mar. 4, 1985; 50 FR 26975, July
1, 1985; 53 FR 52591, Dec. 28, 1988; 63 FR 9729, Feb. 26, 1998; 64 FR
72260, Dec. 27, 1999]
Effective Date Note: At 64 FR 72260, Dec. 27, 1999, Sec. 226.16 was
amended by revising paragraph (e), effective Jan. 26, 2000. For the
convenience of the user, the superseded text follows.
Sec. 226.16 Sponsoring organization provisions.
* * * * *
(e) In addition to records required under Sec. 226.15(e), each
sponsoring organization shall maintain the following:
(1) Information concerning the dates and amounts of disbursements to
each child care or adult day care facility;
(2) Information concerning the location and dates of each child care
or adult day care facility review, any problems noted, and the
corrective action prescribed and effected.
* * * * *
[[Page 212]]
Sec. 226.17 Child care center provisions.
(a) Child care centers may participate in the Program either as
independent centers or under the auspices of a sponsoring organization;
provided, however, that public and private nonprofit centers shall not
be eligible to participate in the Program under the auspices of a for-
profit sponsoring organization. Child care centers participating as
independent centers shall comply with the provisions of Sec. 226.15.
(b) All child care centers, independent or sponsored, shall meet the
following requirements
(1) Child care centers shall have Federal, State, or local licensing
or approval to provide day care services to children. Child care centers
which are complying with applicable procedures to renew licensing or
approval may participate in the Program during the renewal process,
unless the State agency has information which indicates that renewal
will be denied. If licensing or approval is not available, a center may
participate if:
(i) It receives title XX funds for child care; or
(ii) It demonstrates compliance with the CACFP child care standards
or any applicable State or local child care standards to the State
agency.
(2) Except for proprietary title XX centers, child care centers
shall be public, or have tax exempt status under the Internal Revenue
Code of 1986, or be moving toward compliance with the requirements for
tax-exempt status, or be currently operating another Federal program
requiring nonprofit status. A child care center which has applied to the
Internal Revenue Service (IRS) for tax-exempt status may participate in
the Program while its application is pending review by IRS. If IRS
denies the application for tax-exempt status, the child care center
shall immediately notify the State agency of such denial and the State
agency shall terminate the participation of the child care center. If
IRS certification of nonprofit status has not been received within 12
months of filing the application with IRS, and IRS indicates that the
child care center has failed to provide all required information, the
State agency shall terminate the participation of the child care center
until such time as IRS tax-exempt status is obtained.
(3) Each child care center participating in the Program shall serve
one or more of the following meal types: (i) Breakfast, (ii) lunch,
(iii) supper, and (iv) supplemental food. Reimbursement shall not be
claimed for more than two meals and one supplement provided daily to
each child, except that reimbursement may be claimed for two meals and
two supplements or three meals and one supplement served to a child for
each day in which that child is maintained in care for eight or more
hours.
(4) Each child care center participating in the Program shall claim
only the meal types specified in its approved application in accordance
with the meal pattern requirements specified in Sec. 226.20.
Reimbursement may not be claimed for meals served to children who are
not enrolled, or for meals served to children at any one time in excess
of the child care center's authorized capacity, or for any meal served
at a proprietary title XX center during a calendar month when less than
25 percent of enrolled children or 25 percent of licensed capacity,
whichever is less, were title XX beneficiaries. Menus and any other
nutritional records required by the State agency shall be maintained to
document compliance with such requirements.
(5) A child care center with pre-school children may also be
approved to serve a breakfast, supplement, and supper to school-age
children enrolled in an outside-school-hours care program meeting the
criteria of Sec. 226.19(b) which is distinct from its day care program
for preschool-age children. The State agency may authorize the service
of lunch to such enrolled children who attend a school which does not
offer a lunch program provided the limit of not more than two meals and
one supplement per child per day is not exceeded. If the majority of
children served by the center are participating in an outside-school-
hours care program, the center shall comply with reporting requirements
of Sec. 226.19 and, if it is a facility, shall be monitored by the
sponsoring organization at the frequency specified in
Sec. 226.16(d)(4)(iii).
[[Page 213]]
(6) A child care center may utilize existing school food service
facilities or obtain meals from a school food service facility, and the
pertinent requirements of this part shall be embodied in a written
agreement between the child care center and school. The center shall
maintain responsibility for all Program requirements set forth in this
part.
(7) Child care centers shall collect and maintain documentation of
the enrollment of each child, including information used to determine
eligibility for free and reduced price meals in accordance with
Sec. 226.23(e)(1). In addition, Head Start participants need only have a
Head Start statement of income eligibility, or a statement of Head Start
enrollment from an authorized Head Start representative, to be eligible
for free meal benefits under the CACFP.
(8) Each child care center shall maintain daily records of the
number of meals by type (breakfast, lunch, supper, and supplements)
served to enrolled children, and to adults performing labor necessary to
the food service.
(c) Each child care center shall comply with the recordkeeping
requirements established in Sec. 226.10(d), in paragraph (b) of this
section and, if applicable, in Sec. 226.15(e). Failure to maintain such
records shall be grounds for the denial of reimbursement.
[47 FR 36527, Aug. 20, 1982, as amended at 52 FR 36907, Oct. 2, 1987; 53
FR 52591, Dec. 28, 1988; 54 FR 26724, June 26, 1989; Amdt. 22, 55 FR
1378, Jan. 14, 1990; 61 FR 25554, May 22, 1996; 62 FR 23619, May 1,
1997; 63 FR 9729, Feb. 26, 1998; 64 FR 72261, Dec. 27, 1999]
Effective Date Note: At 654 FR 72261, Dec. 27, 1999, Sec. 226.17 was
amended by adding paragraph (c), effective Jan. 26, 2000.
Sec. 226.18 Day care home provisions.
(a) Day care homes shall have current Federal, State or local
licensing or approval to provide day care services to children. Day care
homes which cannot obtain their license because they lack the funding to
comply with licensing standards may request a total limit per home of
$300 in administrative funds from a sponsoring organization to assist
them in obtaining their license. Day care homes that, at the option of
their sponsoring organization, receive administrative funds for
licensing-related expenses must complete documentation requested by
their sponsor as described in Sec. 226.16(k) prior to receiving any
funds. Day care homes which are complying with applicable procedures to
renew licensing or approval may participate in the Program during the
renewal process, unless the State agency has information which indicates
that renewal will be denied. If licensing or approval is not available,
a day care home may participate in the Program if:
(1) It receives title XX funds for providing child care; or
(2) It demonstrates compliance with CACFP child care standards or
applicable State or local child care standards to the State agency.
(b) Day care homes participating in the program shall operate under
the auspices of a public or private nonprofit sponsoring organization.
Sponsoring organizations shall enter into a written agreement with each
sponsored day care home which specifies the rights and responsibilities
of both parties. This agreement shall be developed by the State agency,
unless the State agency elects, at the request of the sponsor, to
approve an agreement developed by the sponsor. At a minimum, the
agreement shall embody:
(1) The right of the sponsoring organization, the State agency, and
the Department to visit the day care home and review its meal service
and records during its hours of child care operations;
(2) The responsibility of the sponsoring organization to train the
day care home's staff in program requirements;
(3) The responsibility of the day care home to prepare and serve
meals which meet the meal patterns specified in Sec. 226.20;
(4) The responsibility of the day care home to maintain records of
menus, and of the number of meals, by type, served to enrolled children;
(5) The responsibility of the day care home to promptly inform the
sponsoring organization about any change in the number of children
enrolled for care or in its licensing or approval status;
[[Page 214]]
(6) The meal types approved for reimbursement to the day care home
by the State agency;
(7) The right of the day care home to receive in a timely manner the
full food service rate for each meal served to enrolled children for
which the sponsoring organization has received payment from the State
agency. However, if, with the home provider's consent, the sponsoring
organization will incur costs for the provision of program foodstuffs or
meals in behalf of the home, and subtract such costs from Program
payments to the home, the particulars of this arrangement shall be
specified in the agreement;
(8) The right of the sponsoring organization or the day care home to
terminate the agreement for cause or, subject to stipulations by the
State agency, convenience; and
(9) A prohibition of any sponsoring organization fee to the day care
home for its Program administrative services.
(10) If the State agency has approved a time limit for submission of
meal records by day care homes, that time limit shall be stated in the
agreement.
(11) The responsibility of the sponsoring organization to inform
tier II day care homes of all of their options for receiving
reimbursement for meals served to enrolled children. These options
include: electing to have the sponsoring organization attempt to
identify all income-eligible children enrolled in the day care home,
through collection of free and reduced price applications and/or
possession by the sponsoring organization or day care home of other
proof of a child or household's participation in a categorically
eligible program, and receiving tier I rates of reimbursement for the
meals served to identified income-eligible children; electing to have
the sponsoring organization identify only those children for whom the
sponsoring organization or day care home possess documentation of the
child or household's participation in a categorically eligible program,
under the expanded categorical eligibility provision contained in
Sec. 226.23(e)(1), and receiving tier I rates of reimbursement for the
meals served to these children; or receiving tier II rates of
reimbursement for all meals served to enrolled children.
(12) The responsibility of the sponsoring organization, upon the
request of a tier II day care home, to collect applications and
determine the eligibility of enrolled children for free or reduced price
meals.
(c) Each day care home shall serve one or more of the following meal
types:
(1) Breakfast,
(2) Lunch,
(3) Supper and
(4) Supplemental food.
Reimbursement shall not be claimed for more than two meals and one
supplement provided daily to each child.
(d) Each day care home participating in the program shall serve the
meal types specified in its approved application in accordance with the
meal pattern requirements specified in Sec. 226.20. Menu records shall
be maintained to document compliance with these requirements. Meals
shall be served at no separate charge to enrolled children;
(e) Each day care home shall maintain daily records of the number of
children in attendance and the number of meals, by type, served to
enrolled children. Each tier II day care home in which the provider
elects to have the sponsoring organization identify enrolled children
who are eligible for free or reduced price meals, and in which the
sponsoring organization employs a meal counting and claiming system in
accordance with Sec. 226.13(d)(3)(i), shall maintain and submit each
month to the sponsoring organization daily records of the number and
types of meals served to each enrolled child by name. Payment may be
made for meals served to the provider's own children only when (1) such
children are enrolled and participating in the child care program during
the time of the meal service, (2) enrolled nonresident children are
present and participating in the child care program and (3) providers'
children are eligible to receive free or reduced-price meals.
Reimbursement may not be claimed for meals served to children who are
not enrolled, or for meals served at any one time to children in excess
of the home's authorized capacity or for meals served to providers'
children who
[[Page 215]]
are not eligible for free or reduced-price meals.
(f) The State agency may not require a day care home or sponsoring
organization to maintain documentation of home operating costs.
(g) Each day care home shall comply with the recordkeeping
requirements established in Sec. 226.10(d) and in this section. Failure
to maintain such records shall be grounds for the denial of
reimbursement.
[47 FR 36527, Aug. 20, 1982, as amended by Amdt. 5, 49 FR 18989, May 4,
1984; 50 FR 8580, Mar. 4, 1985; 52 FR 36907, Oct. 2, 1987; Amdt. 22, 55
FR 1378, Jan. 14, 1990; 61 FR 25554, May 22, 1996; 62 FR 903, Jan. 7,
1997; 63 FR 9105, Feb. 24, 1998; 63 FR 9729, Feb. 26, 1998; 64 FR 72261,
Dec. 27, 1999]
Effective Date Note: At 64 FR 72261, Dec. 27, 1999, Sec. 226.18 was
amended by adding paragraph (g), effective Jan. 26, 2000.
Sec. 226.19 Outside-school-hours care center provisions.
(a) Outside-school-hours care centers may participate in the Program
either as independent centers or under the auspices of a sponsoring
organization; Provided, however, That public and private nonprofit
centers shall not be eligible to participate in the Program under the
auspices of a for-profit sponsoring organization. Outside-school-hours
care centers participating as independent centers shall comply with the
provisions of Sec. 226.15.
(b) All outside-school-hours care centers, independent or sponsored,
shall meet the following requirements:
(1) Outside-school-hours care centers shall have current Federal,
State or local licensing or approval to provide organized child care
services to enrolled school-age children outside of school hours. The
main purpose of the Program shall be the care and supervision of
children. Outside-school-hours care centers which are complying with
applicable procedures to renew licensing or approval may participate in
the Program during the renewal process, unless the State agency has
information which indicates the renewal will be denied. If licensing or
approval is not available, an outside-school-hours care center may
participate in the Program if:
(i) It receives title XX funds for providing child care; or
(ii) It demonstrates compliance with CACFP child care standards or
any applicable State or local child care standards to the State agency.
(2) Except for proprietary title XX centers, outside-school-hours
care centers shall be public, or have tax-exempt status under the
Internal Revenue Code of 1986, or be moving toward compliance with the
requirements for tax-exempt status, or be currently participating in
another Federal program requiring nonprofit status. Centers which have
applied to IRS for tax-exempt status may participate in the Program
while their application is pending review by IRS. If IRS denies the
application, the center shall immediately notify the State agency of
such denial and the State agency shall terminate the participation of
the center. If IRS certification of nonprofit status has not been
received within 12 months of filing the application with IRS and IRS
indicates that the center has failed to provide all required
information, the State agency shall terminate the participation of the
center in the Program until such time as IRS certification is obtained.
(3) Nonresidential public or private nonprofit schools which provide
organized child care programs for school children may participate in the
Program as outside-school-hours care centers if:
(i) Children are enrolled in a regularly scheduled child care
program which meets the criteria of paragraph (b)(1) of this section.
The program is organized for the purpose of providing child care
services and is distinct from any extracurricular programs organized
primarily for scholastic, cultural, and athletic purposes; and
(ii) Separate Program records are maintained.
(4) Outside-school-hours care centers shall be eligible to serve one
or more of the following meal types: breakfasts, supplements and
suppers. In addition, outside-school-hours care centers shall be
eligible to serve lunches to enrolled children during periods of school
vacation, including weekends and holidays, and to enrolled children
attending
[[Page 216]]
schools which do not offer a lunch program. Notwithstanding the
eligibility of outside-school-hours care centers to serve Program meals
to children on school vacation, including holidays and weekends, such
centers shall not operate under the Program on weekends only.
(5) Each outside-school-hours care center participating in the
Program shall claim only the meal types specified in its approved
application and served in compliance with the meal pattern requirements
of Sec. 226.20. Reimbursement shall not be claimed for more than two
meals and one supplement provided daily to each child, except that
reimbursement may be claimed for two meals and two supplements or three
meals and one supplement served to a child for each day in which that
child is maintained in care for eight or more hours. In addition,
reimbursement shall not be claimed for meals served to children who are
not enrolled, for meals served to children at any one time in excess of
authorized capacity, or for any meal served at a proprietary title XX
center during a calendar month when less than 25 percent of enrolled
children or 25 percent of licensed capacity, whichever is less, were
title XX beneficiaries.
(6) Three hours shall elapse between the beginning of one meal
service and the beginning of another, except that 4 hours shall elapse
between the service of a lunch and supper when no supplement is served
between lunch and supper. The service of a supper shall begin no later
than 7 p.m. and end no later than 8 p.m. The duration of the meal
service shall be limited to 2 hours for lunches and supper and 1 hour
for other meals.
(7) Each outside-school-hours care center shall ensure that each
meal service is supervised by an adequate number of operational
personnel trained in Program requirements. Operational personnel shall
ensure that:
(i) Meals are served only to children enrolled for care and adults
who perform necessary food service labor; (ii) meals served to children
meet the meal pattern requirements specified in Sec. 226.20; (iii) each
meal service is consistent with the meal time requirements of paragraph
(b)(7) of this section; (iv) meals served are consumed on the premises
of the centers; (v) accurate records are maintained; and (vi) the number
of meals prepared or ordered is promptly adjusted on the basis of
participation trends.
(8) Each outside-school-hours care center shall accurately maintain
the following records:
(i) Documentation of enrollment for all children, including
information used to determine eligibility for free or reduced price
meals in accordance with Sec. 226.23(e)(1);
(ii) Number of meals prepared or delivered for each meal service;
(iii) Daily menu records for each meal service;
(iv) Number of meals served to enrolled children at each meal
service;
(v) Number of enrolled children in attendance during each meal
service;
(vi) Number of meals served to adults performing necessary food
service labor for each meal service; and
(vii) All other records required by the State agency financial
management system.
(9) An outside-school-hours care center may utilize existing school
food service facilities or obtain meals from a school food service
facility, and the pertinent requirements of this part shall be embodied
in a written agreement between the outside-school-hours care center and
the school. The center shall maintain responsibility for all Program
requirements set forth in this part.
(c) Each outside-school-hours care center shall comply with the
recordkeeping requirements established in Sec. 226.10(d), in paragraph
(b) of this section and, if applicable, in Sec. 226.15(e). Failure to
maintain such records shall be grounds for the denial of reimbursement.
[47 FR 36527, Aug. 20, 1982, as amended at 52 FR 36907, Oct. 2, 1987; 54
FR 26724, June 26, 1989; Amdt. 22, 55 FR 1378, Jan. 14, 1990; 56 FR
58175, Nov. 16, 1991; 61 FR 25554, May 22, 1996; 62 FR 23619, May 1,
1997; 64 FR 72261, Dec. 27, 1999]
Effective Date Note: At 64 FR 72261, Dec. 27, 1999, Sec. 226.19 was
amended by adding paragraph (c), effective Jan. 26, 2000.
[[Page 217]]
Sec. 226.19a Adult day care center provisions.
(a) Adult day care centers may participate in the Program either as
independent centers or under the auspices of a sponsoring organization;
provided, however, that public and private nonprofit centers shall not
be eligible to participate in the Program under the auspices of a for-
profit sponsoring organization. Adult day care centers participating as
independent centers shall comply with the provisions of Sec. 226.15.
(b) All adult day care centers, independent or sponsored, shall meet
the following requirements:
(1) Adult day care centers shall provide a community-based group
program designed to meet the needs of functionally impaired adults
through an individual plan of care. Such a program shall be a
structured, comprehensive program that provides a variety of health,
social and related support services to enrolled adult participants.
(2) Adult day care centers shall provide care and services directly
or under arrangements made by the agency or organization whereby the
agency or organization maintains professional management responsibility
for all such services.
(3) Adult day care centers shall have Federal, State or local
licensing or approval to provide day care services to functionally
impaired adults (as defined in Sec. 226.2) or individuals 60 years of
age or older in a group setting outside their home or a group living
arrangement on a less than 24-hour basis. Adult day care centers which
are complying with applicable procedures to renew licensing or approval
may participate in the Program during the renewal process, unless the
State agency has information which indicates that renewal will be
denied.
(4) Except for proprietary title XIX or title XX centers, adult day
care centers shall be public, or have tax-exempt status under the
Internal Revenue Code of 1986, or be moving toward compliance with the
requirements for tax-exempt status, or be currently operating another
Federal program requiring nonprofit status. An adult day care center
which has applied to the Internal Revenue Service (IRS) for tax-exempt
status may participate in the Program while its application is pending
review by IRS. If IRS denies the application for tax-exempt status, the
adult day care center shall immediately notify the State agency of such
denial and the State agency shall terminate the participation of the
center. If IRS certification of nonprofit status has not been received
within 12 months of filing the application with IRS, and IRS indicates
that the adult day care center has failed to provide all required
information, the State agency shall terminate the participation of the
adult day care center until such time as IRS tax-exempt status is
obtained.
(5) Each adult day care center participating in the Program shall
serve one or more of the following meal types:
(i) Breakfast,
(ii) Lunch,
(iii) Supper, and
(iv) Supplemental food.
Reimbursement shall not be claimed for more than two meals and one
supplement provided daily to each adult participant.
(6) Each adult day care center participating in the Program shall
claim only the meal types specified in its approved application in
accordance with the meal pattern requirements specified in Sec. 226.20.
Participating centers may not claim CACFP reimbursement for meals
claimed under part C of title III of the Older Americans Act of 1965.
Reimbursement may not be claimed for meals served to persons who are not
enrolled, or for meals served to participants at any one time in excess
of the center's authorized capacity, or for any meal served at a
proprietary title XIX or title XX center during a calendar month when
less than 25 percent of enrolled participants were title XIX or title XX
beneficiaries. Menus and any other nutritional records required by the
State agency shall be maintained to document compliance with such
requirements.
(7) An adult day care center may obtain meals from a school food
service facility, and the pertinent requirements of this part shall be
embodied in a written agreement between the center and school. The
center shall maintain responsibility for all Program requirements set
forth in this part.
[[Page 218]]
(8) Adult day care centers shall collect and maintain documentation
of the enrollment of each adult participant including information used
to determine eligibility for free and reduced price meals in accordance
with Sec. 226.23(e)(1).
(9) Each adult day care center shall maintain daily records of the
number of meals by type (breakfast, lunch, supper, and supplements)
served to enrolled participants, and to adults performing labor
necessary to the food service.
(10) Each adult day care center shall maintain records on the age of
each enrolled person. In addition, each adult day care center shall
maintain records which demonstrate that each enrolled person under the
age of 60 meets the functional impairment eligibility requirements
established under the definition of ``functionally impaired adult''
contained in this part. Finally, each adult day care center shall
maintain records which document that qualified adult day care
participants reside in their own homes (whether alone or with spouses,
children or guardians) or in group living arrangements as defined in
Sec. 226.2.
(c) Each adult day care center shall comply with the recordkeeping
requirements established in Sec. 226.10(d), in paragraph (b) of this
section and, if applicable, in Sec. 226.15(e). Failure to maintain such
records shall be grounds for the denial of reimbursement.
[53 FR 52591, Dec. 28, 1988, as amended by Amdt. 22, 55 FR 1378, Jan.
14, 1990; 61 FR 25554, May 22, 1996; 62 FR 23619, May 1, 1997; 64 FR
72261, Dec. 27, 1999]
Effective Date Note: At 64 FR 72261, Dec. 27, 1999, Sec. 226.19a was
amended by adding paragraph (c), effective Jan. 26, 2000.
Sec. 226.20 Requirements for meals.
(a) Except as otherwise provided in this section, each meal served
in the Program shall contain, as a minimum, the indicated food
components:
(1) A breakfast shall contain: (i) Fluid milk as a beverage or on
cereal, or used in part for each purpose;
(ii) Vegetable(s) or fruit(s) or full-strength vegetable or fruit
juice, or any combination of these foods;
(iii) Whole-grain or enriched bread; or cornbread, biscuits, rolls,
muffins, etc., made with whole-grain or enriched meal or flour; or
whole-grain or enriched or fortified cereal; or cooked whole-grain or
enriched pasta or noodle products such as macaroni, or cereal grains
such as rice, bulgur, or corn grits; or any combination of these foods.
(2) Lunch shall contain: (i) Fluid milk as a beverage;
(ii)(A) Lean meat, poultry or fish; or cheese; or an egg; or cooked
dry beans or peas; or peanut butter; or any combination of these foods.
These foods must be served in a main dish, or in a main dish and one
other menu item, to meet this requirement. Cooked dry beans or dry peas
may be used as the meat alternate or as part of the vegetable/fruit
component but not as both food components in the same meal;
(B) Nuts and seeds and their butters listed in program guidance are
nutritionally comparable to meat or other meat alternates based on
available nutritional data. Acorns, chestnuts, and coconuts shall not be
used as meat alternates due to their low protein content. Nut or seed
meals or flours may be used as an ingredient in a bread/bread alternate,
but shall not be used as a meat alternate except as defined in this part
under Appendix A: Alternate Foods for Meals, and in program guidance
materials. As noted in paragraph (c)(2) of this section, nuts or seeds
may be used to meet no more than one-half of the meat/meat alternate
requirements. Therefore, nuts or seeds must be combined with another
meat/meat alternate to fulfill the requirement;
(C) Yogurt may be used to meet all or part of the meat/meat
alternate requirement. Yogurt served may be either plain or flavored,
unsweetened or sweetened. Noncommercial and/or nonstandardized yogurt
products, such as frozen yogurt, homemade yogurt, yogurt flavored
products, yogurt bars, yogurt covered fruit and/or nuts or similar
products shall not be credited. Four ounces (weight) or \1/2\ cup
(volume) of yogurt fulfills the equivalent of one ounce of the meat/meat
alternate requirement in the meal pattern.
(iii) Two or more vegetables or fruits, or a combination of both.
Full-strength vegetable or fruit juice may be counted
[[Page 219]]
to meet not more than one-half of this requirement;
(iv) Whole-grain or enriched bread; or cornbread, biscuits, rolls,
muffins, etc., made with whole-grain or enriched meal or flour; or
whole-grain or enriched pasta or noodle products such as macaroni, or
cereal grains such as rice, bulgur, or corn grits; or any combination of
these foods.
(3) Supper shall contain the food components and servings listed for
lunch in Sec. 226.20(a)(2), except that, for adult participants in adult
day care centers, it does not require a serving of fluid milk.
(4) Supplemental food shall contain two of the following four
components:
(i) Fluid milk as a beverage, or on cereal, or used in part for each
purpose;
(ii) Meat or meat alternate. Nuts and seeds and their butters listed
in program guidance are nutritionally comparable to meat or other meat
alternates based on available nutritional data. Acorns, chestnuts, and
coconuts are excluded and shall not be used as meat alternates due to
their low protein content. Nut or seed meals or flours shall not be used
as a meat alternate except as defined in this part under Appendix A:
Alternate Foods for Meals;
(iii) Vegetable(s) or fruit(s) or full-strength vegetable or fruit
juice, or any combination of these foods. For children, juice may not be
served when milk is served as the only other component;
(iv) Whole-grain or enriched bread; or cornbread, biscuits, rolls,
muffins, etc., made with whole-grain or enriched meal or flour; or
cooked whole-grain or enriched pasta or noodle products such as
macaroni, or cereal grains such as rice, bulgar, or corn grits; or any
combination of these foods.
(b) Infant meal pattern. When infants from birth through 11 months
of age participate in the Program, an infant meal shall be offered.
Foods within the infant meal pattern shall be of texture and consistency
appropriate for the particular age group being served, and shall be
served during a span of time consistent with the infant's eating habits.
For infants 4 through 7 months of age, solid foods are optional and
should be introduced only if the infant is developmentally ready.
Whenever possible the child care facility should consult with the
infant's parent in making the decision to introduce solid foods. Solid
foods should be introduced one at a time on a gradual basis with the
intent of ensuring health and nutritional well-being. For infants 8
through 11 months of age, the total amount of food authorized in the
meal patterns set forth below must be provided in order to qualify for
reimbursement. Additional foods may be served to infants 4 months of age
and older with the intent of improving their overall nutrition. Breast
milk, provided by the infant's mother, may be served in place of infant
formula from birth through 11 months of age. Either breast milk or iron-
fortified infant formula shall be served for the entire first year. For
some breastfed infants who regularly consume less than the minimum
amount of breast milk per feeding, a serving of less than the minimum
amount of breast milk may be offered. In these situations, additional
breast milk must be offered if the infant is still hungry. Juice should
not be offered to infants until they are ready to drink from a cup, in
order to develop behaviors that may prevent baby bottle tooth decay. The
infant meal pattern shall contain, as a minimum, each of the following
components in the amounts indicated for the appropriate age group:
(1) Birth through 3 months. (i) Breakfast--4 to 6 fluid ounces of
breast milk or iron-fortified infant formula;
(ii) Lunch or supper--4 to 6 fluid ounces of iron-fortified infant
formula;
(iii) Supplemental food--4 to 6 fluid ounces of iron-fortified
infant formula.
(2) 4 through 7 months. (i) Breakfast--4 to 8 fluid ounces of breast
milk or iron-fortified infant formula; and 0 to 3 tablespoons of iron-
fortified dry infant cereal (optional);
(ii) Lunch or supper--4 to 8 fluid ounces of iron-fortified infant
formula; and 0 to 3 tablespoons of iron-fortified dry infant cereal
(optional); and 0 to 3 tablespoons of fruit or vegetable of appropriate
consistency or a combination of both (optional);
(iii) Supplemental food--4 to 6 fluid ounces of iron-fortified
infant formula.
[[Page 220]]
(3) 8 through 11 months. (i) Breakfast--6 to 8 fluid ounces of
breast milk or iron-fortified infant formula; 2 to 4 tablespoons of
iron-fortified dry infant cereal; and 1 to 4 tablespoons of fruit or
vegetable of appropriate consistency or a combination of both;
(ii) Lunch or supper--6 to 8 fluid ounces of breast milk or iron-
fortified infant formula; 2 to 4 tablespoons of iron-fortified dry
infant cereal and/or 1 to 4 tablespoons of meat, fish, poultry, egg
yolk, or cooked dry beans or peas, or \1/2\ to 2 ounces (weight) of
cheese or 1 to 4 ounces (weight or volume) of cottage cheese or cheese
food or cheese spread of appropriate consistency; and 1 to 4 tablespoons
of fruit or vegetable of appropriate consistency or a combination of
both;
(iii) Supplemental food--2 to 4 fluid ounces of iron-fortified
infant formula, breast milk, or full strength fruit juice and 0 to \1/2\
slice of crusty bread (optional) or 0 to 2 cracker type products
(optional) made from whole-grain or enriched meal or flour and which are
suitable for an infant for use as a finger food.
(4) The minimum amount of food components to be served as breakfast,
lunch, supper or supplement as set forth in paragraphs (b), (1), (2),
and (3) of this section are as follows:
Child Care Infant Meal Pattern
----------------------------------------------------------------------------------------------------------------
Birth through 3 months 4 through 7 months 8 through 11 months
----------------------------------------------------------------------------------------------------------------
Breakfast............................ 4-6 fl.oz. formula 1 or 4-8 fl.oz. formula 1 or 6-8 fl.oz. formula 1 or
breast milk 2,3. breast milk 2,3;. breast milk 2,3; and
0-3 Tbsp. Infant cereal 2-4 Tbsp. Infant cereal
1,4. 1; and
1-4 Tbsp. Fruit and/or
vegetable
----------------------------------------------------------------------------------------------------------------
Lunch or supper...................... 4-6 fl.oz. formula 1 or 4-8 fl.oz. formula 1 or 6-8 fl.oz. formula 1 or
breast milk 2,3. breast milk 2,3;. breast milk 2,3; and
0-3 Tbsp. Infant cereal 2-4 Tbsp. Infant cereal
1,4;. 1; and/or
0-3 Tbsp. Fruit and/or 1-4 Tbsp. Meat, fish,
vegetable 4. poultry, egg yolk,
cooked dry beans, or
peas; or
\1/2\-2 oz. Cheese; or
1-4 Tbsp. Cottage
cheese, cheese food,
or cheese spread; and
1-4 Tbsp. Fruit and/or
vegetable
----------------------------------------------------------------------------------------------------------------
Supplement (snack)................... 4-6 fl.oz. formula 1 or 4-6 fl.oz. formula 1 or 2-4 fl.oz. formula 1,
breast milk 2,3. breast milk 2,3. breast milk 2,3, or
fruit juice 5;
0-\1/2\ bread 4,6 or 0-
2 crackers 4,6
----------------------------------------------------------------------------------------------------------------
\1\ Infant formula and dry infant cereal shall be iron-fortified.
\2\ It is recommended that breast milk be served in place of formula from birth through 11 months.
\3\ For some breastfed infants who regularly consume less than the minimum amount of breast milk per feeding, a
serving of less than the minimum amount of breast milk may be offered, with additional breast milk offered if
the infant is still hungry.
\4\ A serving of this component shall be optional.
\5\ Fruit juice shall be full-strength.
\6\ Bread and bread alternates shall be made from whole-grain or enriched meal or flour.
(c) Meal patterns for children age one through 12 and adult
participants. When individuals over age one participate in the Program,
the total amount of food authorized in the meal patterns set forth below
shall be provided in order to qualify for reimbursement.
Breakfast
(1) The minimum amount of food components to be served as breakfast
as set forth in paragraph (a)(1) of this section are as follows:
----------------------------------------------------------------------------------------------------------------
Age 6 through 12
Food components Age 1 and 2 Age 3 through 5 \1\ Adult participants
----------------------------------------------------------------------------------------------------------------
Milk
Milk, fluid..................... \1/2\ cup \2\..... \3/4\ cup......... 1 cup............. 1 cup.\2\
Vegetables and Fruits
Vegetable(s) and/or Fruit(s).... \1/4\ cup......... \1/2\ cup......... \1/2\ cup......... \1/2\ cup.
[[Page 221]]
or
Full-strength vegetable or fruit \1/4\ cup......... \1/2\ cup......... \1/2\ cup......... \1/2\ cup.
juice or an equivalent quantity
of any combination of
vegetable(s), fruit(s), and
juice.
Bread and Bread Alternates \3\
Bread........................... \1/2\ slice....... \1/2\ slice....... 1 slice........... 2 slices
(servings).
or
Cornbread, biscuits, rolls, \1/2\ serving..... \1/2\ serving..... 1 serving......... 2 servings.
muffins, etc.\4\.
or
Cold dry cereal \5\............. \1/4\ cup or \1/3\ \1/3\ cup or \1/2\ \3/4\ cup or 1 oz. 1\1/2\ cups or 2
oz. oz. oz.
or
Cooked cereal................... \1/4\ cup......... \1/4\ cup......... \1/2\ cup......... 1 cup.
or
Cooked pasta or noodle products. \1/4\ cup......... \1/4\ cup......... \1/2\ cup......... 1 cup.
or
Cooked cereal grains or an \1/4\ cup......... \1/4\ cup......... \1/2\ cup......... 1 cup.
equivalent quantity of any
combination of bread/bread
alternate.
----------------------------------------------------------------------------------------------------------------
\1\ Children age 12 and up may be served adult size portions based on the greater food needs of older boys and
girls, but shall be served not less than the minimum quantities specified in this section for children age 6
up to 12.
\2\ For purposes of the requirements outlined in this subsection, a cup means a standard measuring cup.
\3\ Bread, pasta or noodle products, and cereal grains, shall be wholegrain or enriched; cornbread, biscuits,
rolls, muffins, etc., shall be made with wholegrain or enriched meal or flour; cereal shall be wholegrain or
enriched or fortified.
\4\ Serving sizes and equivalents to be published in guidance materials by FNS.
\5\ Either volume (cup) or weight (oz.) whichever is less.
Lunch
(2) The minimum amounts of food components to be served as lunch as
set forth in paragraph (a)(2) of this section are as follows:
----------------------------------------------------------------------------------------------------------------
Age 6 through 12
Food components Age 1 and 2 Age 3 through 5 \1\ Adult participants
----------------------------------------------------------------------------------------------------------------
Milk
Milk, fluid..................... \1/2\ cup \2\..... \3/4\ cup......... 1 cup............. 1 cup.\2\
Vegetables and Fruits \3\
Vegetable(s) and/or fruit(s).... \1/4\ cup total... \1/2\ cup total... \3/4\ cup total... 1 cup total.
Bread and Bread Alternates \4\
Bread........................... \1/2\ slice....... \1/2\ slice....... 1 slice........... 2 slices
(servings).
or
Cornbread, biscuits, roll, \1/2\ serving..... \1/2\ serving..... 1 serving......... 2 servings.
muffins, etc.\5\.
or
Cooked pasta or noodle products. \1/4\ cup......... \1/4\ cup......... \1/2\ cup......... 1 cup.
or
Cooked cereal grains or an \1/4\ cup......... \1/4\ cup......... \1/2\ cup......... 1 cup.
equivalent quantity of any
combination of bread/bread
alternate.
Meat and Meat Alternates
Lean meat or poultry or fish \6\ 1 oz.............. 1\1/2\ oz......... 2 oz.............. 2 oz.
or
Cheese.......................... 1 oz.............. 1\1/2\ oz......... 2 oz.............. 2 oz.
or
Eggs (large).................... \1/2\ egg......... \3/4\ egg......... 1 egg............. 1 egg.
or
Cooked dry beans or peas........ \1/4\cup.......... \3/8\ cup......... \1/2\ cup......... \1/2\ cup.
or
Peanut butter or soynut butter 2 tbsp............ 3 tbsp............ 4 tbsp............ 4 tbsp.
or other nut or seed butters.
or
Peanuts or soynuts or tree nuts \1/2\ oz \8\ = 50% \3/4\ oz \8\ = 50% 1 oz \8\ = 50%.... 1 oz=50 percent.
or seeds.\7\.
or
Yogurt, plain or flavored, 4 oz. or \1/2\ cup 6 oz. or \3/4\ cup 8 oz. or 1 cup.... 8 oz. or 1 cup.
unsweetened or sweetened.
An equivalent quantity of any
combination of the above meat/
meat alternates.
----------------------------------------------------------------------------------------------------------------
\1\ Children age 12 and up may be served adult size portions based on the greater food needs of older boys and
girls, but shall be served not less than the minimum quantities specified in this section for children age 6
up to 12.
\2\ For purposes of the requirements outlined in this subsection, a cup means a standard measuring cup.
[[Page 222]]
\3\ Serve 2 or more kinds of vegetable(s) and/or fruit(s). Full-strength vegetable or fruit juice may be counted
to meet not more than one-half of this requirement.
\4\ Bread, pasta or noodle products, and cereal grains shall be wholegrain or enriched, cornbread, biscuits,
rolls, muffins, etc., shall be made with wholegrain or enriched meal or flour.
\5\ Serving sizes equivalents to be published in guidance materials by FNS.
\6\ Edible portion as served.
\7\ Tree nuts and seeds that may be used as meat alternates are listed in program guidance.
\8\ No more than 50% of the requirement shall be met with nuts or seeds. Nuts or seeds shall be combined with
another meat/meat alternate to fulfill the requirement. For purpose of determining combinations, 1 oz. of nuts
or seeds is equal to 1 oz. of cooked lean meat, poultry or fish.
(3) The minimum amounts of food components to be served as supper as
set forth in paragraph (a)(3) of this section are as follows:
SUPPER
----------------------------------------------------------------------------------------------------------------
Food components Age 1 and 2 Age 3 through 5 Age 6 through 12 1 Adult participants
----------------------------------------------------------------------------------------------------------------
MILK
Milk, fluid.................... \1/2\ cup \2\...... \3/4\ cup......... 1 cup............. None.
VEGETABLES AND FRUITS \3\
Vegetable(s) and/or fruit(s)... \1/4\ cup total.... \1/2\ cup total... \3/4\ cup total... 1 cup total.
BREAD AND BREAD ALTERNATES \4\
Bread.......................... \1/2\ slice........ \1/2\ slice....... 1 slice........... 2 slices
(servings).
or
Cornbread, biscuits, rolls, \1/2\ serving...... \1/2\ serving..... 1 serving......... 2 servings.
muffins, etc \5\.
or
Cooked cereal or grains or an \1/4\ cup.......... \1/4\ cup......... \1/2\ cup......... 1 cup.
equivalent quantity of any
combination of bread/bread
alternates.
MEAT AND MEAT ALTERNATES
Lean meat or poultry or fish 1 oz............... 1 \1/2\ oz........ 2 oz.............. 2 oz.
\6\.
or
Cheese......................... 1 oz............... 1 \1/2\ oz........ 2 oz.............. 2 oz.
or
Eggs (large)................... \1/2\ egg.......... \3/4\ egg......... 1 egg............. 1 egg
or
Cooked dry beans or peas....... \1/4\ cup.......... \3/8\ cup......... \1/2\ cup......... \1/2\ cup.
or
Peanut butter or soynut butter 2 tbsp............ 3 tbsp............ 4 tbsp............ 4 tbsp.
or other nut or seed butters.
or
Peanuts or soynuts or tree nuts \1/2\ oz=50 \3/4\ oz=50 1 oz=50 1 oz=50
or seeds \7\. percent.\8\. percent.\8\. percent.\8\. percent.\8\
or
Yogurt, plain or flavored, 4 oz. or \1/2\ cup. 6 oz. or \3/4\ cup 8 oz. or 1 cup.... 8 oz. or 1 cup.
unsweetened or sweetened.
An equivalent quantity of any
combination of the above meat/
meat alternates.
----------------------------------------------------------------------------------------------------------------
\1\ Children age 12 and up may be served adult size portions based on the greater food needs of older boys and
girls, but shall be served not less than the minimum quantities specified in this section for children age 6
through 12.
\2\ For purposes of the requirements outlined in this subsection, a cup means a standard measuring cup.
\3\ Serve 2 or more kinds of vegetable(s) and/or fruit(s). Full-strength vegetable or fruit juice may be counted
to meet not more than one-half of this requirement.
\4\ Bread, pasta or noodle products, and cereal grains shall be wholegrain or enriched; cornbread, biscuits,
rolls, muffins, etc., shall be made with wholegrain or enriched meal or flour.
\5\ Serving size equivalents to be published in guidance materials by FNS.
\6\ Edible portion as served.
\7\ Tree nuts and seeds that may be used as meat alternates are listed in program guidance.
\8\ No more than 50% of the requirement shall be met with nuts or seeds. Nuts or seeds shall be combined with
another meat/meat alternate to fulfill the requirement. For the purpose of determining combinations, 1 oz. of
nuts or seeds is equal to 1 oz. of cooked lean meat, poultry, or fish.
Supplemental Food
(4) The minimum amounts of food components to be served as
supplemental food as set forth in paragraph (a)(4) of this section are
as follows. Select two of the following four components. (For children,
juice may not be served when milk is served as the only other
component.)
[[Page 223]]
----------------------------------------------------------------------------------------------------------------
Age 6 through 12
Food components Age 1 and 2 Age 3 through 5 \1\ Adult participants
----------------------------------------------------------------------------------------------------------------
Milk
Milk, fluid..................... \1/2\ cup \2\..... \1/2\ cup......... 1 cup............. 1 cup.\2\
Vegetables and Fruits
Vegetable(s) and/or fruit(s).... \1/2\ cup......... \1/2\ cup......... \3/4\ cup......... \1/2\ cup.
or
Full-strength vegetable or fruit \1/2\ cup......... \1/2\ cup......... \3/4\ cup......... \1/2\ cup.
juice or an equivalent quantity
of any combination of
vegetable(s), fruit(s) and
juice.
Bread and Bread Alternates \3\
Bread........................... \1/2\ slice....... \1/2\ slice....... 1 slice........... 1 slice (serving).
or
Cornbread, biscuits, rolls, \1/2\ serving..... \1/2\ serving..... 1 serving......... 1 serving.
muffins, etc \4\.
of
Cold dry cereal \5\............. \1/4\ cup or \1/3\ \1/3\ cup or \1/2\ \3/4\ cup or 1 oz. \3/4\ cup or 1 oz.
oz. oz.
or
Cooked cereal................... \1/4\ cup......... \1/4\ cup......... \1/2\ cup......... \1/2\ cup.
or
Cooked pasta or noodle products. \1/4\ cup......... \1/4\ cup......... \1/2\ cup......... \1/2\ cup.
or
Cooked cereal grains or an \1/4\ cup......... \1/4\ cup......... \1/2\ cup......... \1/2\ cup.
equivalent quantity of any
combination of bread/bread
alternate.
Meat and Meat Alternates
Lean meat or poultry or fish \6\ \1/2\ oz.......... \1/2\ oz.......... 1 oz.............. 1 oz.
or
Cheese.......................... \1/2\ oz.......... \1/2\ oz.......... 1 oz.............. 1 oz.
or
Eggs (large).................... \1/2\ egg......... \1/2\ egg......... \1/2\ egg......... \1/2\ egg.
or
Cooked dry beans or peas........ \1/8\ cup......... \1/8\ cup......... \1/4\ cup......... \1/4\ cup.
or
Peanut butter or soynut butter 1 tbsp............ 1 tbsp............ 2 tbsp............ 2 tbsp.
or other nut or seed butters.
or
Peanuts or soynuts or tree nuts \1/2\ oz.......... \1/2\ oz.......... 1 oz.............. 1 oz.
or seeds \7\.
or
Yogurt, plain, or sweetened and 2 oz or \1/4\ cup. 2 oz or \1/4\ cup. 4 oz or \1/2\ cup. 4 oz or \1/2\ cup.
flavored.
or
An equivalent quantity of any
combination of the meat/meat
alternates .
----------------------------------------------------------------------------------------------------------------
\1\ Children age 12 and up may be served adult size portions based on the greater food needs of older boys and
girls, but shall be served not less than the minimum quantities specified in this section for children age 6
up to 12.
\2\ For purposes of the requirements outlined in this paragraph, a cup means a standard measuring cup.
\3\ Bread, pasta or noodle products, and cereal grains shall be wholegrain or enriched, cornbread, biscuits,
rolls, muffins, etc., shall be made with wholegrain or enriched meal or flour; cereal shall be wholegrain or
enriched or fortified.
\4\ Serving size and equivalents to be published in guidance materials by FNS.
\5\ Either volume (cup) or weight (oz.), whichever is less.
\6\ Edible portion as served.
\7\ Tree nuts and seeds that may be used as meat alternates are listed in program guidance.
(d) Additional food. To improve the nutrition of participating
children over 1 year of age additional foods may be served with each
meal as follows:
(1) Breakfast. Include as often as practical one-half egg; or a 1-
ounce serving (edible portion as served) of meat, poultry or fish; or 1-
ounce of cheese; or 2 tablespoons of peanut butter; or 4 oz. of yogurt;
or an equivalent quantity of any combination of these foods. Additional
foods may be served as desired.
(2) Lunch, supper or supplemental food. Additional foods may be
served as desired.
(e) Temporary unavailability of milk. If emergency conditions
prevent an institution normally having a supply of milk from temporarily
obtaining milk deliveries, the State agency may approve the service of
breakfasts, lunches, or suppers without milk during the emergency
period.
(f) Continuing unavailability of milk. The inability of an
institution to obtain a supply of milk on a continuing basis shall not
bar it from participation in the Program. In such cases, the State
agency may approve service of meals without milk, provided that an
[[Page 224]]
equivalent amount of canned, whole dry or nonfat dry milk is used in the
preparation of the components of the meal set forth in paragraphs
(a)(1), (2) and (3) of this section.
(g) Statewide substitutions. In American Samoa, Puerto Rico, Guam,
the Virgin Islands, the Trust Territory of the Pacific Islands, and the
Northern Mariana Islands the following variations from the meal
requirements are authorized: A serving of a starchy vegetable, such as
yams, plantains, or sweet potatoes may be substituted for the bread
requirements.
(h) Individual substitutions. Substitutions may be made in food
listed in paragraphs (b) and (c) of this section if individual
participants are unable, because of medical or other special dietary
needs, to consume such foods. Substitutions because of medical needs
shall be made only when supported by a statement from a recognized
medical authority which includes recommended alternate foods.
(i) Special variations. FNS may approve variations in the food
components of the meals on an experimental or a continuing basis in any
institution where there is evidence that such variations are
nutritionally sound and are necessary to meet ethnic, religious,
economic, or physical needs.
(j) Meal planning. Institutions shall plan for and order meals on
the basis of current participation trends, with the objective of
providing only one meal per participant at each meal service. Records of
participation and of ordering or preparing meals shall be maintained to
demonstrate positive action toward this objective. In recognition of the
fluctuation in participation levels which makes it difficult to estimate
precisely the number of meals needed and to reduce the resultant waste,
any excess meals that are ordered may be served to participants and may
be claimed for reimbursement, unless the State agency determines that
the institution has failed to plan and prepare or order meals with the
objective of providing only one meal per participant at each meal
service.
(k) Sanitation. Institutions shall ensure that in storing,
preparing, and serving food, proper sanitation and health standards are
met which conform with all applicable State and local laws and
regulations. Institutions shall ensure that adequate facilities are
available to store food or hold meals.
(l) Donated commodities. Institutions shall efficiently use in the
Program any foods donated by the Department and accepted by the
institution.
(m) Plentiful foods. Institutions shall, insofar as practical,
purchase and efficiently use in the Program foods designated as
plentiful by the Department.
(n) Additional provision. The State agency may allow institutions
which serve meals prepared in schools participating in the National
School Lunch and School Breakfast Programs to substitute the meal
pattern requirements of the regulations governing those Programs (7 CFR
part 210 and 7 CFR part 220, respectively) for the meal pattern
requirements contained in this section.
(o) Family-style meal service. Meals may be served in a family-style
setting.
(p) Offer versus serve. (1) Each adult day care center shall offer
its adult participants all of the required food servings as set forth in
paragraph (c)(1), (c)(2) and (c)(3) of this section. However, at the
discretion of the adult day care center, adult participants may be
permitted to decline:
(i) One of the four food items (one serving of milk, one serving of
vegetable and/or fruit, and two servings of bread or bread alternate)
required at breakfast;
(ii) Two of the six food items (one serving of milk, two servings of
vegetable and/or fruit, two servings of bread or bread alternate, and
one serving of meat or meat alternate) required at lunch;
(iii) Two of the five food items (two servings of vegetables and/or
fruit, two servings of bread or bread alternate, and one serving of meat
or meat alternate) required at supper.
[[Page 225]]
(2) The price of a reimbursable meal shall not be affected if an
adult participant declines a food item.
[47 FR 36527, Aug. 20, 1982; 48 FR 40197, Sept. 16, 1983, as amended at
50 FR 8581, Mar. 4, 1985; 51 FR 16811, May 7, 1986; 51 FR 23515, June
30, 1986; 53 FR 25308, July 6, 1988; 53 48632, Dec. 2, 1988; 53 FR
52592, Dec. 28, 1988; 54 FR 27153, June 28, 1989; 58 FR 37850, July 14,
1993; 62 FR 10191, Mar. 6, 1997; 64 FR 61775, Nov. 15, 1999; 64 FR
72261, Dec. 27, 1999]
Effective Date Note: At 64 FR 72261, Dec. 27, 1999, Sec. 226.20 was
amended by revising the entry for ``Eggs'' in the table in paragraph
(c)(2), by revising the heading and entry for ``Eggs'' and by adding 8
footnotes in paragraph (c)(3); by revising the headings and the entry
for ``Eggs'' in the table in paragraph (c)(4); and by removing `` an
egg'' and adding in its place ``one-half egg'' in paragraph (d)(1),
effective Jan. 26, 2000. For the convenience of the user, the superseded
text follows.
[[Page 226]]
Sec. 226.20 Requirements for meals.
* * * * *
(c) * * *
(2) * * *
LUNCH
----------------------------------------------------------------------------------------------------------------
Children ages 1 Children ages 3 Children ages 6
Food components and 2 through 5 through 12 1 Adult participants
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
Eggs............................ 1 egg............. 1 egg............. 1 egg............. 1 egg
* * * * * *
*
----------------------------------------------------------------------------------------------------------------
(c) * * *
(3) * * *
SUPPER
----------------------------------------------------------------------------------------------------------------
Food components Age 1 and 2 Age 3 through 5 Age 6 through 12 1 Adult participants
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
Eggs........................... 1 egg............. 1 egg............. 1 egg............. 1 egg.
* * * * * *
*
----------------------------------------------------------------------------------------------------------------
(c) * * *
(4) * * *
SUPPLEMENTAL FOOD
----------------------------------------------------------------------------------------------------------------
Children ages 1 Children ages 3 Children ages 6
Food components and 2 through 5 through 12 1 Adult participants
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
Eggs............................ 1 egg............ 1 egg............. 1 egg............. 1 egg.
* * * * * *
*
----------------------------------------------------------------------------------------------------------------
* * * * *
Sec. 226.21 Food service management companies.
(a) Any institution may contract with a food service management
company. An institution which contracts with a food service management
company shall remain responsible for ensuring that the food service
operation conforms to its agreement with the State agency. All
procurements of meals from food service management companies shall
adhere to the procurement standards set forth in Sec. 226.22. Public
institutions shall follow applicable State or local laws governing bid
procedures. In the absence of any applicable State or local laws, and in
addition to the procurement provisions set forth in Sec. 226.22, the
State agency may mandate that each institution with Program meal
contracts of an aggregate value in excess of $10,000 formally advertise
such contracts and comply with the following procedures intended to
prevent fraud, waste, and Program abuse:
(1) All proposed contracts shall be publicly announced at least once
14 calendar days prior to the opening of bids. The announcement shall
include the time and place of the bid opening;
(2) The institution shall notify the State agency at least 14
calendar days prior to the opening of the bids of the time and place of
the bid opening;
(3) The invitation to bid shall not provide for loans or any other
monetary benefit or terms or conditions to
[[Page 227]]
be made to institutions by food service management companies;
(4) Nonfood items shall be excluded from the invitation to bid,
except where such items are essential to the conduct of the food
service;
(5) The invitation to bid shall not specify special meal
requirements to meet ethnic or religious needs unless special
requirements are necessary to meet the needs of the participants to be
served;
(6) The bid shall be publicly opened;
(7) All bids totaling $50,000 or more shall be submitted to the
State agency for approval before acceptance. All bids shall be submitted
to the State agency for approval before accepting a bid which exceeds
the lowest bid. State agencies shall respond to any request for approval
within 10 working days of receipt;
(8) The institutions shall inform the State agency of the reason for
selecting the food service management company chosen. State agencies may
require institutions to submit copies of all bids submitted under this
section.
(b) The institution and the food service management company shall
enter into a standard contract as required by Sec. 226.6(i). However,
public institutions may, with the approval of the State agency, use
their customary form of contract if it incorporates the provisions of
Sec. 226.6(i).
(c) A copy of the contract between each institution and food service
management company shall be submitted to the State agency prior to the
beginning of Program operations under the subject contract.
(d) Each proposed additional provision to the standard form of
contract shall be submitted to the State agency for approval.
(e) A food service management company may not subcontract for the
total meal, with or without milk, or for the assembly of the meal.
[47 FR 36527, Aug. 20, 1982, as amended at 53 FR 52594, Dec. 28, 1988]
Sec. 226.22 Procurement standards.
(a) This section establishes standards and guidelines for the
procurement of foods, supplies, equipment, and other goods and services.
These standards are furnished to ensure that such materials and services
are obtained efficiently and economically and in compliance with the
provisions of applicable Federal law and Executive orders.
(b) These standards shall not relieve the institution of any
contractual responsibilities under its contracts. The institution is
responsible, in accordance with good administrative practice and sound
business judgment, for the settlement of all contractual and
administrative issues arising out of procurements entered into in
support of the Program. These include, but are not limited to: source
evaluation, protests of award, disputes, and claims. Violations of the
law shall be referred to the local, State, or Federal authority having
proper jurisdiction.
(c) Institutions may use their own procurement procedures which
reflect applicable State or local laws and regulations, provided that
procurements made with Program payments conform to the standards set
forth in this section and in Attachment O of Office of Management and
Budget Circulars A-102 and A-110, as well as to procurement requirements
which may be established by the State agency, with the approval of FNS
to prevent fraud, waste, and Program abuse.
(d) Institutions shall maintain a written code of standards of
conduct which shall govern the performance of their officers, employees
or agents engaged in the award and administration of contracts supported
by Program payments. No employee, officer or agent of the grantee shall
participate in selection, or in the award or administration of a
contract supported by Federal funds if a conflict of interest, real or
apparent, would be involved. Such a conflict would arise when:
(1) The employee, officer or agent;
(2) Any member of his immediate family;
(3) His or her partner; or
(4) An organization which employs, or is about to employ, any of the
above, has a financial or other interest in the firm selected for award.
The institution's officers, employees or agents shall neither solicit
nor accept gratuities, favors or anything of monetary value from
contractors, potential contractors, or parties to subagreements.
Institutions may set minimum
[[Page 228]]
rules where the financial interest is not substantial or the gift is an
unsolicited item of nominal intrinsic value. To the extent permitted by
State or local law or regulations, such standards of conduct shall
provide for penalties, sanctions, or other disciplinary actions for
violations of such standards by the institution's officers, employees,
or agents, or by contractors or their agents.
(e) The institution shall establish procurement procedures which
provide that proposed procurement actions shall be reviewed by
institution officials to avoid the purchase of unnecessary or
duplicative items. Where appropriate, an analysis shall be made of lease
versus purchase alternatives, and any other appropriate analysis to
determine which approach would be the most economical.
(f) Affirmative steps shall be taken to assure that small and
minority businesses are utilized when possible. Affirmative steps shall
include the following:
(1) Including qualified small and minority businesses on
solicitation lists;
(2) Assuring that small and minority businesses are solicited
whenever they are potential sources;
(3) When economically feasible, dividing total requirements into
smaller tasks or quantities so as to permit maximum small and minority
business participation;
(4) Where the requirement permits, establishing delivery schedules
which will encourage participation by small and minority businesses;
(5) Using the services and assistance of the Small Business
Administration and the Minority Business Enterprise of the Department of
Commerce as required;
(6) If any subcontracts are to be let, requiring the prime
contractor to take the affirmative steps in paragraphs (b) (1) through
(5) of this section; and
(7) Taking similar appropriate affirmative action in support of
women's business enterprises.
(g) All procurement transactions, regardless of whether by sealed
bids or by negotiation and without regard to dollar value, shall be
conducted in a manner that provides maximum open and free competition
consistent with this section. Procurement procedures shall not restrict
or eliminate competition. Examples of what is considered to be
restrictive of competition include, but are not limited to (1) placing
unreasonable requirements on firms in order for them to qualify to do
business, (2) noncompetitive practices between firms, (3) organizational
conflicts of interest, and (4) unnecessary experience and bonding
requirements.
(h) The institution shall have written selection procedures which
shall provide, as a minimum, the following procedural requirements:
(1) Solicitations of offers, whether by competitive sealed bids or
competitive negotiation, shall:
(i) Incorporate a clear and accurate description of the technical
requirements for the material, product, or service to be procured. Such
description shall not, in competitive procurements, contain features
which unduly restrict competition. The description may include a
statement of the qualitative nature of the material, product or service
to be procured, and when necessary, shall set forth those minimum
essential characteristics and standards to which it must conform if it
is to satisfy its intended use. Detailed product specifications should
be avoided if at all possible. When it is impractical or uneconomical to
make a clear and accurate description of the technical requirements, a
``brand name or equal'' description may be used as a means to define the
performance or other salient requirements of a procurement. The specific
features of the named brand which must be met by offerors shall be
clearly stated; and
(ii) Clearly set forth all requirements which offerors must fulfill
and all other factors to be used in evaluating bids or proposals.
(2) Awards shall be made only to responsible contractors that
possess the potential ability to perform successfully under the terms
and conditions of a proposed procurement. Consideration shall be given
to such matters as contractor integrity, compliance with public policy,
record of past performance, and financial and technical resources.
(i) Program procurements shall be made by one of the following
methods:
[[Page 229]]
(1) Small purchase procedures are those relatively simple and
informal procurement methods that are sound and appropriate for the
procurement of services, supplies or other property, costing in the
aggregate not more than $10,000. Institutions shall comply with State or
local small purchase dollar limits under $10,000. If small purchase
procedures are used for a procurement under the Program, price or rate
quotation shall be obtained from an adequate number of qualified
sources; or
(2) In competitive sealed bids (formal advertising), sealed bids are
publicly solicited and a firm-fixed-price contract (lump sum or unit
price) is awarded to the responsible bidder whose bid, conforming with
all the material terms and conditions of the invitation for bids, is
lowest in price.
(i) In order for formal advertising to be feasible, appropriate
conditions must be present, including as a minimum, the following:
(A) A complete, adequate and realistic specification or purchase
description is available.
(B) Two or more responsible suppliers are willing and able to
compete effectively for the institution's business.
(C) The procurement lends itself to a firm-fixed price contract, and
selection of the successful bidder can appropriately be made principally
on the basis of price.
(ii) If formal advertising is used for a procurement under the
Program, the following requirements shall apply:
(A) A sufficient time prior to the date set for opening of bids,
bids shall be solicited from an adequate number of known suppliers. In
addition, the invitation shall be publicly advertised.
(B) The invitation for bids, including specifications and pertinent
attachments, shall clearly define the items or services needed in order
for the bidders to properly respond to the invitation.
(C) All bids shall be opened publicly at the time and place stated
in the invitation for bids.
(D) A firm-fixed-price contract award shall be made by written
notice to that responsible bidder whose bid, conforming to the
invitation for bids, is lowest. Where specified in the bidding
documents, factors such as discounts, transportation costs and life
cycle costs shall be considered in determining which bid is lowest.
Payment discounts may only be used to determine low bid when prior
experience of the grantee indicates that such discounts are generally
taken.
(E) Any or all bids may be rejected when there are sound documented
business reasons in the best interest of the Program.
(3) In competitive negotiation, proposals are requested from a
number of sources and the Request for Proposal is publicized.
Negotiations are normally conducted with more than one of the sources
submitting offers, and either a fixed-price or cost-reimbursable type
contract is awarded, as appropriate. Competitive negotiation may be used
if conditions are not appropriate for the use of formal advertising. If
competitive negotiation is used for a procurement under a grant, the
following requirements shall apply:
(i) Proposals shall be solicited from an adequate number of
qualified sources to permit reasonable competition consistent with the
nature and requirements of the procurement. The Request for Proposals
shall be publicized and reasonable requests by other sources to compete
shall be honored to the maximum extent practicable:
(ii) The Request for Proposal shall identify all significant
evaluation factors, including price or cost where required and their
relative importance;
(iii) The institution shall provide mechanisms for technical
evaluation of the proposal received, determinations of responsible
offerors for the purpose of written or oral discussions, and selection
for contract award; and
(iv) Award may be made to the responsible offeror whose proposal
will be most advantageous to the procuring party, price and other
factors considered. Unsuccessful offerors should be notified promptly.
(4) Noncompetitive negotiation is procurement through solicitation
of a proposal from only one source, or after solicitation of a number of
sources, competition is determined inadequate. Noncompetitive
negotiation may be used when the award of a contract is
[[Page 230]]
infeasible under small purchase, competitive bidding (formal
advertising), or competitive negotiation procedures. Circumstances under
which a contract may be awarded by noncompetitive negotiation are
limited to the following:
(i) The item is available only from a single source;
(ii) Public exigency or emergency when the urgency for the
requirement will not permit a delay incident to competitive
solicitation;
(iii) FNS authorizes noncompetitive negotiation; or
(iv) After solicitation of a number of sources, competition is
determined inadequate.
(j) The cost plus a percentage of cost method of contracting shall
not be used. Instructions shall perform some form of cost or price
analysis in connection with every procurement action including contract
modifications. Costs or prices based on estimated costs for contracts
under the Program shall be allowed only to the extent that costs
incurred or cost estimates included in negotiated prices are consistent
with Federal cost principles.
(k) Institutions shall maintain records sufficient to detail the
significant history of a procurement. These records shall include, but
are not necessarily limited to information pertinent to the following:
rationale for the method of procurement, selection of contract type,
contractor selection or rejection, and the basis for the cost or price.
(l) In addition to provisions defining a sound and complete
procurement contract, institutions shall include the following contract
provisions or conditions in all procurement contracts and subcontracts
as required by the provision, Federal Law or FNS:
(1) Contracts other than small purchases shall contain provisions or
conditions which will allow for administrative, contractual, or legal
remedies in instances where contractors violate or breach contract
terms, and provide for such sanctions and penalties as may be
appropriate;
(2) All contracts in excess of $10,000 shall contain suitable
provisions for termination by the institution including the manner by
which it will be effected and the basis for settlement. In addition,
such contracts shall describe conditions under which the contract may be
terminated for default as well as conditions where the contract may be
terminated because of circumstances beyond the control of the
contractor;
(3) All contracts awarded in excess of $10,000 by institutions and
their contractors shall contain a provision requiring compliance with
Executive Order 11246, entitled ``Equal Employment Opportunity,'' as
amended by Executive Order 11375, and as supplemented in Department of
Labor regulations (41 CFR part 60);
(4) Where applicable, all contracts awarded by institutions in
excess of $2,500 which involve the employment of mechanics or laborers
shall include a provision for compliance with section 103 of the
Contract Work Hours and Safety Standards Act (40 U.S.C. 327 through 330)
as supplemented by Department of Labor regulations (29 CFR part 5).
Under section 103 of the Act, each contractor shall be required to
compute the wages of every mechanic and laborer on the basis of a
standard work day of 8 hours and a standard work week of 40 hours. Work
in excess of the standard work day or week is permissible provided that
the worker is compensated at a rate of not less than 1\1/2\ times the
basic rate of pay for all hours worked in excess of 8 hours in any
calendar day or 40 hours in the work week. These requirements do not
apply to the purchases of supplies or materials or articles ordinarily
available on the open market, or contracts for transportation or
transmission of intelligence;
(5) The contract shall include notice of USDA requirements and
regulations pertaining to reporting and patent rights under any contract
involving research, developmental, experimental or demonstration work
with respect to any discovery or invention which arises or is developed
in the course of or under such contract, and of USDA requirements and
regulations pertaining to copyrights and rights in data. These
requirements are in Sec. 3015.175 of the USDA Uniform Federal Assistance
Regulations 7 CFR part 3015. All negotiated contracts (except
[[Page 231]]
those awarded by small purchases procedures) awarded by institutions
shall include a provision to the effect that the institution, FNS, the
Comptroller General of the United States or any of their duly authorized
representatives, shall have access to any books, documents, papers, and
records of the contractor which are directly pertinent to that specific
contract, for the purpose of making audit, examination, excerpts, and
transcriptions. Institutions shall require contractors to maintain all
required records for three years after institutions make final payment
and all other pending matters are closed;
(6) Contracts and subcontracts of amounts in excess of $100,000
shall contain a provision which requires compliance with all applicable
standards, orders, or requirements issued under section 306 of the Clean
Air Act (42 U.S.C. 1837(h)), section 508 of the Clean Water Act (33
U.S.C. 1368), Executive Order 11738, and Environmental Protection Agency
regulations (40 CFR part 15), which prohibit the use under nonexempt
Federal contracts, grants or loans of facilities included on the EPA
List of Violating Facilities. The provision shall require reporting of
violations to FNS and to the U.S. EPA Assistant Administrator for
Enforcement (EN-329); and
(7) Contracts shall recognize mandatory standards and policies
relating to energy efficiency which are contained in the State energy
efficiency conservation plan issued in compliance with the Energy Policy
and Conservation Act (Pub. L. 94-163).
(m) Institutions shall maintain a contract administration system
insuring that contractors perform in accordance with the terms,
conditions, and specifications of their contracts or purchase orders.
Sec. 226.23 Free and reduced-price meals.
(a) The State agency shall require each institution to submit, at
the time the institution applies for Program participation, a written
policy statement concerning free and reduced-price meals to be used
uniformly in all child care and adult day care facilities under its
jurisdiction as required in this section. Institutions shall not be
approved for participation nor agreements renewed unless the free and
reduced-price policy statement has been approved. Pending approval of a
revision of a policy statement, the existing policy shall remain in
effect.
(b) Sponsoring organizations of day care homes (which may not serve
meals at a separate charge to children) and other institutions which
elect to serve meals at no separate charge, shall develop a policy
statement consisting of an assurance to the State agency that all
participants are served the same meals at no separate charge, regardless
of race, color, national origin, sex, age, or handicap and that there is
no discrimination in the course of the food service. This statement
shall also contain an assurance that there will be no identification of
children in day care homes in which meals are reimbursed at both the
tier I and tier II reimbursement rates, and that the sponsoring
organization will not make any free and reduced price eligibility
information concerning individual households available to day care homes
and will otherwise limit the use of such information to persons directly
connected with the administration and enforcement of the Program.
(c) Independent centers and sponsoring organizations of centers
which charge separately for meals shall develop a policy statement for
determining eligibility for free and reduced-price meals which shall
include the following:
(1) The specific criteria to be used in determining eligibility for
free and reduced-price meals. The institution's standards of eligibility
shall conform to the Secretary's income standards;
(2) A description of the method or methods to be used in accepting
applications from families for free and reduced-price meals. Such
methods will ensure that applications are accepted from households on
behalf of children who are members of AFDC assistance units or food
stamp or FDPIR households or, for adult participants, who are members of
a food stamp or FDPIR household or SSI or Medicaid participants;
(3) A description of the method or methods to be used to collect
payments from those participants paying the full
[[Page 232]]
or reduced price of the meal which will protect the anonymity of the
participants receiving a free or reduced-price meal;
(4) An assurance which provides that the institution will establish
a hearing procedure for use when benefits are denied or terminated as a
result of verification:
(i) A simple, publicly announced method for a family to make an oral
or written request for a hearing;
(ii) An opportunity for the family to be assisted or represented by
an attorney or other person in presenting its appeal;
(iii) An opportunity to examine, prior to and during the hearing,
the documents and records presented to support the decision under
appeal;
(iv) That the hearing shall be held with reasonable promptness and
convenience to the family and that adequate notice shall be given to the
family as to the time and place of the hearing;
(v) An opportunity for the family to present oral or documentary
evidence and arguments supporting its position;
(vi) An opportunity for the family to question or refute any
testimony or other evidence and to confront and cross-examine any
adverse witnesses;
(vii) That the hearing shall be conducted and the determination made
by a hearing official who did not participate in making the initial
decision;
(viii) The determination of the hearing official shall be based on
the oral and documentary evidence presented at the hearing and made a
part of that hearing record;
(ix) That the family and any designated representatives shall be
notified in writing of the decision of the hearing official;
(x) That a written record shall be prepared with respect to each
hearing, which shall include the decision under appeal, any documentary
evidence and a summary of any oral testimony presented at the hearing,
the decision of the hearing official, including the reasons therefor,
and a copy of the notification to the family of the decision of the
hearing official; and
(xi) That such written record of each hearing shall be preserved for
a period of three years and shall be available for examination by the
family or its representatives at any reasonable time and place during
such period;
(5) An assurance that there will be no overt identification of free
and reduced-price meal recipients and no discrimination against any
participant on the basis of race, color, national origin, sex, age, or
handicap;
(6) An assurance that the charges for a reduced-price lunch or
supper will not exceed 40 cents, that the charge for a reduced-price
breakfast will not exceed 30 cents, and that the charge for a reduced-
price supplement will not exceed 15 cents.
(d) Each institution shall annually provide the information media
serving the area from which the institution draws its attendance with a
public release. All media releases issued by institutions other than
sponsoring organizations of day care homes, shall include the
Secretary's Income Eligibility Guidelines for Free and Reduced-Price
Meals. The release issued by all sponsoring organizations of day care
homes, and by other institutions which elect not to charge separately
for meals, shall announce the availability of meals at no separate
charge. The release issued by child care institutions which charge
separately for meals shall announce the availability of free and
reduced-price meals to children meeting the approved eligibility
criteria. The release issued by child care institutions shall also
announce that children who are members of AFDC assistance units, food
stamp or FDPIR households, or are Head Start participants are
automatically eligible to receive free meal benefits. The release issued
by adult day care centers which charge separately for meals shall
announce the availability of free and reduced-price meals to
participants meeting the approved eligibility criteria. The release
issued by adult day care centers shall also announce that adult
participants who are members of food stamp or FDPIR households or who
are SSI or Medicaid participants are automatically eligible to receive
free meal benefits. All releases shall state that meals are available to
all participants without regard to race, color, national origin, sex,
age or handicap.
[[Page 233]]
(e)(1) Application for free and reduced-price meals. (i) For the
purpose of determining eligibility for free and reduced price meals,
institutions shall distribute applications for free and reduced price
meals to the families of participants enrolled in the institution.
Sponsoring organizations of day care homes shall distribute applications
for free and reduced price meals to day care home providers who wish to
enroll their own eligible children in the Program. At the request of a
provider in a tier II day care home, sponsoring organizations of day
care homes shall distribute applications for free and reduced price
meals to the households of all children enrolled in the home, except
that applications need not be distributed to the households of enrolled
children that the sponsoring organization determines eligible for free
and reduced price meals under the circumstances described in paragraph
(e)(1)(vi) of this section. These applications, and any other
descriptive material distributed to such persons, shall contain only the
family-size income levels for reduced price meal eligibility with an
explanation that households with incomes less than or equal to these
levels are eligible for free or reduced price meals. Such forms and
descriptive materials may not contain the income standards for free
meals. However, such forms and materials distributed by child care
institutions other than sponsoring organizations of day care homes shall
state that, if a child is a member of a food stamp or FDPIR household or
AFDC assistance unit, the child is automatically eligible to receive
free Program meal benefits, subject to the completion of the application
as described in paragraph (e)(1)(ii) of this section; such forms and
materials distributed by sponsoring organizations of day care homes
shall state that, if a child or a child's parent is participating in or
subsidized under a Federally or State supported child care or other
benefit program with an income eligibility limit that does not exceed
the eligibility standard for free or reduced price meals, meals served
to the child are automatically eligible for tier I reimbursement,
subject to the completion of the application as described in paragraph
(e)(1)(ii) of this section, and shall list any programs identified by
the State agency as meeting this standard; such forms and materials
distributed by adult day care centers shall state that, if an adult
participant is a member of a food stamp or FDPIR household or is a SSI
or Medicaid participant, the adult participant is automatically eligible
to receive free Program meal benefits, subject to the completion of the
application as described in paragraph (e)(1)(iii) of this section.
Sponsoring organizations of day care homes shall not make free and
reduced price eligibility information concerning individual households
available to day care homes and shall otherwise limit the use of such
information to persons directly connected with the administration and
enforcement of the Program. However, sponsoring organizations may inform
tier II day care homes of the number of identified income-eligible
enrolled children. If a State agency distributes, or chooses to permit
its sponsoring organizations to distribute, applications to the
households of children enrolled in tier II day care homes which include
household confidentiality waiver statements, such applications shall
include a statement informing households that their participation in the
program is not dependent upon signing the waivers. Furthermore, such
forms and materials distributed by child care institutions shall state
that if a child is a Head Start participant, the child is automatically
eligible to receive free Program meal benefits, subject to submission by
Head Start officials of a Head Start statement of income eligibility or
income eligibility documentation.
(ii) Except as provided in paragraph (e)(1)(iv) of this section, the
application for children shall contain a request for the following
information:
(A) The names of all children for whom application is made;
(B) The names of all other household members;
(C) The social security number of the adult household member who
signs the application, or an indication that he/she does not possess a
social security number;
(D) The income received by each household member identified by
source
[[Page 234]]
of income (such as earnings, wages, welfare, pensions, support payments,
unemployment compensation, social security, and other cash income
received or withdrawn from any other source, including savings,
investments, trust accounts, and other resources);
(E) A statement to the effect that ``In certain cases, foster
children are eligible for free and reduced-price meals regardless of
household income. If such children are living with you and you wish to
apply for such meals, please contact us.'';
(F) A statement which includes substantially the following
information: ``Section 9 of the National School Lunch Act requires that,
unless you provide a food stamp, FDPIR or AFDC case number for your
child, or unless a Head Start statement of income eligibility or income
eligibility verification is provided for your child, you must provide
the social security numbers of all adult members of your household in
order for your child to be eligible for free or reduced price meals.
This must be the social security number of the adult household member
signing the application. If the adult household member signing the
application does not possess a social security number, he/she must
indicate so on the application. Provision of a social security number is
not mandatory, but if a social security number is not provided or an
indication is not made that the adult household member signing the
application does not have one, the application cannot be approved. This
notice must be brought to the attention of the household member whose
social security number is disclosed. The social security number may be
used to identify the household member in carrying out efforts to verify
the correctness of information stated on the application. These
verification efforts may be carried out through program reviews, audits,
and investigations and may include contacting employers to determine
income, contacting a food stamp, Indian tribal organization, welfare, or
Head Start office to determine current certification for receipt of food
stamps, FDPIR or AFDC benefits, or participation in Head Start,
contacting the State employment security office to determine the amount
of benefits received, and checking the documentation produced by
household members to prove the amount of income received. These efforts
may result in loss or reduction of benefits, administrative claims or
legal action if incorrect information is reported.'' State agencies and
institutions shall ensure that the notice complies with section 7 of
Pub. L. 93-579. If a State or local agency plans to use the social
security numbers for Program verification purposes in a manner not
described by this notice, the notice shall be altered to include a
description of those uses; and
(G) The signature of an adult member of the household which appears
immediately below a statement that the person signing the application
certifies that all information furnished is true and correct; that the
application is being made in connection with the receipt of Federal
funds; that Program officials may verify the information on the
application; and that the deliberate misrepresentation of any of the
information on the application may subject the applicant to prosecution
under applicable State and Federal criminal statutes.
(iii) Except as provided in paragraph (e)(1)(v) of this section, the
application for adults shall contain a request for the following
information:
(A) The names of all adults for whom application is made;
(B) The names of all other household members;
(C) The social security number of the adult household member who
signs the application, or an indication that he/she does not possess a
social security number;
(D) The income received by source of income (such as earnings,
wages, welfare, pensions, support payments, unemployment compensation,
social security, and other cash income received or withdrawn from any
other source, including savings, investments, trust accounts and other
resources);
(E) A statement which includes substantially the following
information: ``Section 9 of the National School Lunch Act requires that,
unless a food stamp, or FDPIR case number or SSI or Medicaid assistance
identification number is provided for the adult for
[[Page 235]]
whom benefits are sought, you must include a social security number on
the application. This must be the social security number of the adult
household member signing the application. If the adult household member
signing the application does not possess a social security number, he/
she must indicate so on the application. Provision of a social security
number is not mandatory, but if a social security number is not provided
or an indication is not made that the adult household member signing the
application does not have one, the application cannot be approved. This
notice must be brought to the attention of the household member whose
social security number is disclosed. The social security number may be
used to identify the household member in carrying out efforts to verify
the correctness of information stated on the application. These
verification efforts may be carried out through program reviews, audits
and investigations and may include contacting employers to determine
income, contacting a food stamp, Indian tribal organization or welfare
office to determine current certification for receipt of food stamps or
FDPIR benefits, contacting the issuing office of SSI or Medicaid
benefits to determine current certification for receipt of these
benefits, contacting the State employment security office to determine
the amount of benefits received, and checking the documentation produced
by household members to provide the amount of income received. These
efforts may result in loss or reduction of benefits, administrative
claims or legal action if incorrect information is reported.'' State
agencies and institutions shall ensure that the notice complies with
section 7 of Pub. L. 93-579. If a State or local agency plans to use the
social security numbers for CCFP verification purposes in a manner not
described by this notice, the notice shall be altered to include a
description of those uses; and
(F) The signature of an adult member of the household which appears
immediately below a statement that the person signing the application
certifies that all information furnished is true and correct; that the
application is being made in connection with the receipt of Federal
funds; that Program officials may verify the information on the
application; and that the deliberate misrepresentation of any of the
information on the application may subject the applicant to prosecution
under applicable State and Federal criminal statutes.
(iv) If they so desire, households applying on behalf of children
who are members of food stamp or FDPIR households or AFDC assistance
units may apply under this paragraph rather than under the procedures
described in paragraph (e)(1)(ii) of this section. In addition,
households of children enrolled in tier II day care homes who are
participating in a Federally or State supported child care or other
benefit program with an income eligibility limit that does not exceed
the eligibility standard for free and reduced price meals may apply
under this paragraph rather than under the procedures described in
paragraph (e)(1)(ii) of this section. Households applying on behalf of
children who are 0members of food stamp or FDPIR households; AFDC
assistance units; or for children enrolled in tier II day care homes,
other qualifying Federal or State program, shall be required to provide:
(A) For the child(ren) for whom automatic free meal eligibility is
claimed, their names and food stamp, FDPIR, or AFDC case number; or for
the households of children enrolled in tier II day care homes, their
names and other program case numbers (if the program utilizes case
numbers); and
(B) The signature of an adult member of the household as provided
for in paragraph (e)(1)(ii)(G) of this section. In accordance with
paragraph (e)(1)(ii)(F) of this section, if a case number is provided,
it may be used to verify the current certification for the child(ren)
for whom free meal benefits are claimed. Whenever households apply for
children not receiving food stamp, FDPIR, or AFDC benefits; or for tier
II homes, other qualifying Federal or State program benefits, they must
apply in accordance with the requirements set forth in paragraph
(e)(1)(ii) of this section.
(v) If they so desire, households applying on behalf of adults who
are members of food stamp or FDPIR
[[Page 236]]
households or SSI or Medicaid participants may apply for free meal
benefits under this paragraph rather than under the procedures described
in paragraph (e)(1)(iii) of this section. Households applying on behalf
of adults who are members of food stamp or FDPIR households or SSI or
Medicaid participants shall be required to provide:
(A) The names and food stamp or FDPIR case numbers or SSI or
Medicaid assistance identification numbers of the adults for whom
automatic free meal eligibility is claimed; and
(B) The signature of an adult member of the household as provided in
paragraph (e)(1)(iii)(F) of this section. In accordance with paragraph
(e)(1)(iii)(G) of this section, if a food stamp or FDPIR case number or
SSI or Medicaid assistance identification number is provided, it may be
used to verify the current food stamp, FDPIR, SSI, or Medicaid
certification for the adult(s) for whom free meal benefits are being
claimed. Whenever households apply for benefits for adults not receiving
food stamp, FDPIR, SSI, or Medicaid benefits, they must apply in
accordance with the requirements set forth in paragraph (e)(1)(iii) of
this section.
(vi) A sponsoring organization of day care homes may identify
enrolled children eligible for free and reduced price meals (i.e., tier
I rates), without distributing free and reduced price applications, by
documenting the child's or household's participation in or receipt of
benefits under a Federally or State supported child care or other
benefit program with an income eligibility limit that does not exceed
the eligibility standard for free and reduced price meals. Documentation
shall consist of official evidence, available to the tier II day care
home or sponsoring organization, and in the possession of the sponsoring
organization, of the household's participation in the qualifying
program.
(2) Letter to households. Institutions shall distribute a letter to
households or guardians of enrolled participants in order to inform them
of the procedures regarding eligibility for free and reduced-price
meals. The letter shall accompany the application required under
paragraph (e)(1) of this section and shall contain:
(i) The income standards for reduced-price meals, with an
explanation that households with incomes less than or equal to the
reduced-price standards would be eligible for free or reduced-price
meals (the income standards for free meals shall not be included in
letters or notices to such applicants);
(ii) How a participant's household may make application for free or
reduced-price meals;
(iii) An explanation that an application for free or reduced price
benefits cannot be approved unless it contains complete
``documentation'' as defined in Sec. 226.2.
(iv) The statement: ``In the operation of child feeding programs, no
person will be discriminated against because of race, color, national
origin, sex, age, or handicap'';
(v) A statement to the effect that participants having family
members who become unemployed are eligible for free or reduced-price
meals during the period of unemployment, provided that the loss of
income causes the family income during the period of unemployment to be
within the eligibility standards for those meals;
(vi) Except in the case of adult participants, a statement to the
effect that in certain cases foster children are eligible for free or
reduced-price meals regardless of the income of such household with whom
they reside and that households wishing to apply for such benefits for
foster children should contact the institution; and
(vii) An explanation that households receiving free and reduced-
price meals must notify appropriate institution officials during the
year of any decreases in household size or increases in income of over
$50 per month or $600 per year or--
(A) In the case of households of enrolled children that provide a
food stamp, FDPIR or AFDC case number to establish a child's eligibility
for free meals, any termination in the child's certification to
participate in the Food Stamp, FDPIR or AFDC Programs, or
(B) In the case of households of adult participants that provide a
food stamp or FDPIR case number or an SSI or Medicaid assistance
identification number to establish an adult's eligibility for free
meals, any termination
[[Page 237]]
in the adult's certification to participate in the Food Stamp, FDPIR,
SSI or Medicaid Programs.
(3) In addition to the information listed in paragraph (e)(2) of
this section pricing institutions must include in their letter to
household an explanation that indicates that: (i) The information in the
application may be verified at any time during the year; and (ii) how a
family may appeal a decision of the institution to deny, reduce, or
terminate benefits as described under the hearing procedure set forth in
paragraph (c)(4) of this section.
(4) Determination of eligibility. The institution shall take the
income information provided by the household on the application and
calculate the household's total current income. When a completed
application furnished by a family indicates that the family meets the
eligibility criteria for free or reduced-price meals, the participants
from that family shall be determined eligible for free or reduced-price
meals. Institutions that are pricing programs shall promptly provide
written notice to each family informing them of the results of the
eligibility determinations. When the information furnished by the family
is not complete or does not meet the eligibility criteria for free or
reduced-price meals, institution officials must consider the
participants from that family as not eligible for free or reduced-price
meals, and must consider the participants as eligible for ``paid''
meals. When information furnished by the family of participants enrolled
in a pricing program does not meet the eligibility criteria for free or
reduced-price meals, pricing program officials shall provide written
notice to each family denied free or reduced-price benefits. At a
minimum, this notice shall include:
(i) The reason for the denial of benefits, e.g., income in excess of
allowable limits or incomplete application;
(ii) Notification of the right to appeal;
(iii) Instructions on how to appeal; and
(iv) A statement reminding the household that they may reapply for
free or reduced-price benefits at any time during the year,
The reasons for ineligibility shall be properly documented and retained
on file at the institution.
(5) Appeals of denied benefits. A family that wishes to appeal the
denial of an application in a pricing program shall do so under the
hearing procedures established under paragraph (c)(4) of this section.
However, prior to initiating the hearing procedures, the household may
request a conference to provide all affected parties the opportunity to
discuss the situation, present information and obtain an explanation of
the data submitted on the application or the decision rendered. The
request for a conference shall not in any way prejudice or diminish the
right to a fair hearing. The institution shall promptly schedule a fair
hearing, if requested.
(f) Free, reduced-price and paid meal eligibility figures must be
reported by institutions to State agencies at least once each year and
shall be based on current family-size and income information of enrolled
participants. Such information shall be no more than 12 months old.
(g) Sponsoring organizations for family day care homes shall ensure
that no separate charge for food service is imposed on families of
children enrolled in participating family day care homes.
(h) Verification of eligibility. State agencies shall conduct
verification of eligibility for free and reduced-price meals on an
annual basis, in accordance with the verification procedures outlined in
paragraphs (h) (1) and (2) of this section. Verification may be
conducted in accordance with Program assistance requirements of
Sec. 226.6(l); however, the performance of verification for individual
institutions shall occur no less frequently than once every four years.
Any State may, with the written approval of FNSRO, use alternative
approaches in the conduct of verification, provided that the results
achieved meet the requirements of this part. If the verification process
discloses deficiencies with the determination of eligibility and/or
application procedures which exceed maximum levels established by FNS,
State agencies shall conduct follow-up reviews for the purpose of
determining that corrective action has been taken by the institution.
[[Page 238]]
These reviews shall be conducted within one year of the date the
verification process was completed. The verification effort shall be
applied without regard to race, color, national origin, sex, age, or
handicap. State agencies shall maintain on file for review a description
of the annual verification to be accomplished in order to demonstrate
compliance with paragraphs (h) (1) and (2) of this section.
(1) Verification procedures for nonpricing programs. Except for
sponsoring organizations of family day care homes, State agency
verification procedures for nonpricing programs shall consist of a
review of all approved free and reduced price applications on file. For
sponsoring organizations of family day care homes, State agency
verification procedures shall consist of a review only of the approved
free and reduced price applications (or other documentation, if vouchers
or other documentation are used in lieu of free and reduced price
applications) on file for those day care homes that are required to be
reviewed when the sponsoring organization is reviewed, in accordance
with the review requirements set forth in section 226.6(l) of this Part.
However, the State agency shall ensure that the day care homes selected
for review are representative of the proportion of tier I, tier II, and
tier II day care homes with a mix of income-eligible and non-income-
eligible children in the sponsorship, and shall ensure that at least 10
percent of all free and reduced price applications (or other
documentation, if applicable) on file for the sponsorship are verified.
The review of applications shall ensure that:
(i) The application has been correctly and completely executed by
the household;
(ii) The institution has correctly determined and classified the
eligibility of enrolled participants for free or reduced price meals or,
for family day care homes, for tier I or tier II reimbursement, based on
the information included on the application submitted by the household;
(iii) The institution has accurately reported to the State agency
the number of enrolled participants meeting the criteria for free or
reduced price meal eligibility or, for day care homes, the number of
participants meeting the criteria for tier I reimbursement, and the
number of enrolled participants that do not meet the eligibility
criteria for those meals; and
(iv) In addition, the State agency may conduct further verification
of the information provided by the household on the approved application
for program meal eligibility. If this effort is undertaken, the State
agency shall conduct this further verification for nonpricing programs
in accordance with the procedures described in paragraph (h)(2) of this
section.
(2) Verification procedures for pricing programs. (i) For pricing
programs, in addition to the verification procedures described in
paragraph (h)(1) of this section, State agencies shall also conduct
verification of the income information provided on the approved
application for free and reduced price meals and, at State agency
discretion, verification may also include confirmation of other
information required on the application. However,
(A) If a food stamp, FDPIR or AFDC case number is provided for a
child, verification for such child shall include only confirmation that
the child is included in a currently certified food stamp or FDPIR
household or AFDC assistance unit; or
(B) If a food stamp or FDPIR case number or SSI or Medicaid
assistance identification number is provided for an adult, verification
for such adult shall include only confirmation that the adult is
included in a currently certified food stamp or FDPIR household or is
currently certified to receive SSI or Medicaid benefits.
(ii) State agencies shall perform verification on a random sample of
no less than 3 percent of the approved free and reduced price
applications in an institution which is a pricing program.
(iii) Households shall be informed in writing that they have been
selected for verification and they are required to submit the requested
verification information to confirm their eligibility for free or
reduced-price benefits by such date as determined by the State agency.
Those households shall be informed of the type or types of information
and/or documents acceptable to
[[Page 239]]
the State agency and the name and phone number of an official who can
answer questions and assist the household in the verification effort.
This information must include a social security number for each adult
household member or an indication that he/she does not have one. State
agencies shall inform selected households that:
(A) Section 9 of the National School Lunch Act requires that, unless
households provide the child's food stamp, FDPIR or AFDC case number, or
the adult participant's food stamp or FDPIR case number or SSI or
Medicaid assistance identification number, those selected for
verification must provide the social security number of each adult
household member;
(B) In lieu of providing a social security number, an adult
household member may indicate that he/she does not possess one;
(C) Provision of a social security number is not mandatory, but if a
social security number is not provided for each adult household member
or an indication is not made that he/she does not possess one, benefits
will be terminated;
(D) The social security number may be used to identify household
members in carrying out efforts to verify the correctness of information
stated on the application and continued eligibility for the program.
These verification efforts may be carried out through program reviews,
audits, and investigations and may include contacting employers to
determine income, contacting Federal, State or local agencies to
determine current certification for receipt of food stamps or FDPIR,
AFDC, SSI or Medicaid benefits, contacting the State employment security
office to determine the amount of benefits received, and checking the
documentation produced by household members to prove the amount of
income received. These efforts may result in loss or reduction of
benefits, administrative claims or legal actions if incorrect
information was reported; and
(E) This information must be provided to the attention of each adult
household member disclosing his/her social security number. State
agencies shall ensure that the notice complies with section 7 of Pub. L.
93-579 (Privacy Act of 1974). These households shall be provided with
the name and phone number of an official who can assist in the
verification effort.
(iv) Households of enrolled children selected for verification shall
also be informed that if they are currently certified to participate in
the Food Stamp, FDPIR, or AFDC Program they may submit proof of that
certification in lieu of income information. In those cases, such proof
shall consist of a current ``Notice of Eligibility'' for Food Stamp,
FDPIR, or AFDC Program benefits or equivalent official documentation
issued by a food stamp, Indian Tribal Organization, or welfare office
which shows that the children are members of households or assistance
units currently certified to participate in the Food Stamp, FDPIR, or
AFDC Programs. An identification card for any of these programs is not
acceptable as verification unless it contains an expiration date.
Households of enrolled adults selected for verification shall also be
informed that if they are currently certified to participate in the Food
Stamp Program or FDPIR or SSI or Medicaid Programs, they may submit
proof of that certification in lieu of income information. In those
cases, such proof shall consist of:
(A) A current ``Notice of Eligibility'' for Food Stamp or FDPIR
benefits or equivalent official documentation issued by a food stamp,
Indian Tribal Organization, or welfare office which shows that the adult
participant is a member of a household currently certified to
participate in the Food Stamp Program or FDPIR. An identification card
is not acceptable as verification unless it contains an expiration date;
or
(B) Official documentation issued by an appropriate SSI or Medicaid
office which shows that the adult participant currently receives SSI or
Medicaid assistance. An identification card is not acceptable as
verification unless it contains an expiration date. All households
selected for verification shall be advised that failure to cooperate
with verification efforts will result in a termination of benefits.
[[Page 240]]
(v) Sources of information for verification may include written
evidence, collateral contacts, and/or systems of records.
(A) Written evidence shall be used as the primary source of
information for verification. Written evidence includes written
confirmation of a household's circumstances, such as wage stubs, award
letters, letters from employers, and, for enrolled children, current
certification to participate in the Food Stamp, FDPIR or AFDC Programs,
or, for adult participants, current certification to participate in the
Food Stamp, FDPIR, SSI or Medicaid Programs. Whenever written evidence
is insufficient to confirm eligibility, the State agency may use
collateral contacts.
(B) Collateral contact is a verbal confirmation of a household's
circumstances by a person outside of the household. The collateral
contact may be made in person or by phone and shall be authorized by the
household. The verifying official may select a collateral contact if the
household fails to designate one or designates one which is unacceptable
to the verifying official. If the verifying official designates a
collateral contact, the contact shall not be made without providing
written or oral notice to the household. At the time of this notice, the
household shall be informed that it may consent to the contact or
provide acceptable verification in another form. The household shall be
informed that its eligibility for free or reduced price meals shall be
terminated if it refuses to choose one of these options. Termination
shall be made in accordance with paragraph (h)(2)(vii) of this section.
Collateral contacts could include employers, social service agencies,
and migrant agencies.
(C) Systems of records to which the State agency may have routine
access are not considered collateral contacts. Information concerning
income, family size, or food stamp/FDPIR/AFDC certification for enrolled
children, or food stamp/FDPIR/SSI/Medicaidcertification for enrolled
adults, which is maintained by other government agencies and to which a
State agency can legally gain access may be used to confirm a
household's eligibility for Program meal benefits. One possible source
could be wage and benefit information maintained by the State
unemployment agency, if that information is available. The use of any
information derived from other agencies must be used with applicable
safeguards concerning disclosure.
(vi) Verification by State agencies of receipt of food stamps,
FDPIR, AFDC, SSI or Medicaid benefits shall be limited to a review to
determine that the period of eligibility is current. If the benefit
period is found to have expired, or if the household's certification has
been terminated, the household shall be required to document their
income eligibility.
(vii) The State agency may work with the institution to verify the
documentation submitted by the household on the application; however,
the responsibility to complete the verification process may not be
delegated to the institution.
(viii) If a household refuses to cooperate with efforts to verify,
or the verification of income indicates that the household is ineligible
to receive benefits or is eligible to receive reduced benefits, the
State agency shall require the pricing program institution to terminate
or adjust eligibility in accordance with the following procedures.
Institution officials shall immediately notify families of the denial of
benefits in accordance with paragraphs (e)(4) and (e)(5) of this
section. Advance notification shall be provided to families which
receive a reduction or termination of benefits 10 calendar days prior to
the actual reduction or termination. The 10-day period shall begin the
day the notice is transmitted to the family. The notice shall advise the
household of: (A) The change; (B) the reasons for the change; (C)
notification of the right to appeal the action and the date by which the
appeal must be requested in order to avoid a reduction or termination of
benefits; (D) instructions on how to appeal; and (E) the right to
reapply at any time during the year. The reasons for ineligibility shall
be properly documented and retained on file at the institution.
[[Page 241]]
(ix) When a household disagrees with an adverse action which affects
its benefits and requests a fair hearing, benefits shall be continued as
follows while the household awaits the hearing:
(A) Households which have been approved for benefits and which are
subject to a reduction or termination of benefits later in the same year
shall receive continued benefits if they appeal the adverse action
within the 10-day advance notice period; and
(B) Households which are denied benefits upon application shall not
received benefits.
(3) State agencies shall inform institution officials of the results
of the verification effort and the action which will be taken in
response to the verification findings. This notification shall be made
in accordance with the procedures outlined in Sec. 226.14(a).
(4) If the verification results disclose that an institution has
inaccurately classified or reported the number of participants eligible
for free, reduced-price or paid meals, the State agency shall adjust
institution rates of reimbursement retroactive to the month in which the
incorrect eligibility figures were reported by the institution to the
State agency.
(5) If the verification results disclose that a household has not
reported accurate documentation on the application which would support
continued eligibility for free or reduced-price meals, the State agency
shall immediately adjust institution rates of reimbursement. However,
this rate adjustment shall not become effective until the affected
households have been notified in accordance with the procedures of
paragraph (h)(2)(vi) of this section and any ensuing appeals have been
heard as specified in paragraph (h)(2)(viii) of this section.
(6) Verification procedures for sponsoring organizations of day care
homes. Prior to approving an application for a day care home that
qualifies as tier I day care home on the basis of the provider's
household income, sponsoring organizations of day care homes shall
conduct verification of such income in accordance with the procedures
contained in paragraph (h)(2)(i) of this section. Sponsoring
organizations of day care homes may verify the information on
applications submitted by households of children enrolled in day care
homes in accordance with the procedures contained in paragraph (h)(2)(i)
of this section.
[47 FR 36527, Aug. 20, 1982, as amended at 49 FR 14078, Apr. 10, 1984;
50 FR 19310, May 8, 1985; 50 FR 20197, May 15, 1985; 52 FR 36907, Oct.
2, 1987; 53 FR 52594, Dec. 28, 1988; Amdt. 22, 55 FR 1378, Jan. 14,
1990; 61 FR 25555, May 22, 1996; 62 FR 904, Jan. 7, 1997; 62 FR 5519,
Feb. 6, 1997; 62 FR 23619, May 1, 1997; 63 FR 9105, Feb. 24, 1998; 63 FR
9729, Feb. 26, 1998]
Subpart F--Food Service Equipment Provisions
Sec. 226.24 Property management requirements.
Institutions and administering agencies shall follow the policies
and procedures governing title, use, and disposition of equipment
obtained by purchase, whose cost was acquired in whole or part with food
service equipment assistance funds in accordance with the Department's
Uniform Federal Assistance Regulations (7 CFR part 3015).
[48 FR 41142, Sept. 14, 1983]
Subpart G--Other Provisions
Sec. 226.25 Other provisions.
(a) Grant closeout procedures. Grant closeout procedures for the
Program shall be in accordance with the Uniform Federal Assistance
Regulations.
(b) State requirements. Nothing contained in this part shall prevent
a State agency from imposing additional requirements for participation
in the Program which are not inconsistent with the provisions of this
part; however, any additional requirements shall be approved by FNSRO
and may not deny the Program to an eligible institution.
(c) Value of assistance. The value of assistance to participants
under the Program shall not be considered to be income or resources for
any purposes under any Federal or State laws, including, but not limited
to laws relating to taxation, welfare, and public assistance programs.
(d) Maintenance of effort. Expenditure of funds from State and local
sources
[[Page 242]]
for the maintenance of food programs for children shall not be
diminished as a result of funds received under the Act.
(e) Fraud penalty. Whoever embezzles, willfully misapplies, steals,
or obtains by fraud any funds, assets, or property that are the subject
of a grant or other form of assistance under this part, whether received
directly or indirectly from the Department or whoever receives,
conceals, or retains such funds, assets, or property to his use or gain,
knowing such funds, assets, or property have been embezzled, willfully
misapplied, stolen, or obtained by fraud shall, if such funds, assets,
or property are of the value of $100 or more, be fined not more than
$10,000 or imprisoned not more than five years, or both, or, if such
funds, assets, or property are of value of less than $100, shall be
fined not more than $1,000 or imprisoned for not more than one year, or
both.
(f) Claims adjustment authority. The Secretary shall have the
authority to determine the amount of, to settle, and to adjust any claim
arising under the Program, and to compromise or deny such claim or any
part thereof. The Secretary shall also have the authority to waive such
claims if the Secretary determines that to do so would serve the
purposes of the program. This provision shall not diminish the authority
of the Attorney General of the United States under section 516 of title
28, U.S. Code, to conduct litigation on behalf of the United States.
(g) Special retroactivity provisions. Notwithstanding any other
provisions contained in this part, the following shall apply:
(1) State agencies shall provide reimbursement for meals served by
any adult day care center between October 1, 1987 and the date of the
initial Program agreement between the State agency and the center under
the following conditions, provided that:
(i) The center can document that, for any meals claimed:
(A) Meals served met all requirements including items and quantities
served;
(B) Free and reduced-price applications were on file if
reimbursement for free or reduced-price meals is sought;
(C) Meal counts by category (free, reduced-price and paid) and type
served (breakfast, lunch, supper and supplement) are available;
(D) Appropriate food service revenue and expenditure records are
available;
(E) Reimbursement has not been received under title III of the Older
Americans Act for the claimed meals and CCFP reimbursement does not
duplicate other funding for the claimed meals; and
(ii) The application for Program participation is postmarked or
submitted to the State agency no later than April 17, 1989, and the
claims for reimbursement for the meals served between October 1, 1987
and the date of the initial agreement between the State agency and the
center are postmarked or submitted to the State agency no later than
April 17, 1989 or the date set by Sec. 226.10(e), whichever is later.
(2) Alternative documentation for free meal eligibility for adult
participants shall be based on the following:
(i) Beginning with October 1, 1987, documentation of membership in a
food stamp household;
(ii) For the period October 1, 1987 through September 30, 1988,
documentation of membership in an AFDC assistance unit; and
(iii) Beginning October 1, 1988, documentation of receipt of
assistance under Medicaid or SSI.
(3) For the period October 1, 1987 through September 30, 1988, the
family of an adult participant applying for free or reduced-price meals
shall include a group of related or nonrelated individuals, who are not
residents of an institution or boarding house, but who are living as one
economic unit. However, beginning October 1, 1988, the family of an
adult participant applying for free or reduced-price meals shall include
only the adult participant and any spouse or dependent(s) residing with
the adult participant.
[47 FR 36527, Aug. 20, 1982, as amended at 53 FR 52597, Dec. 28, 1988;
54 FR 13049, Mar. 30, 1989]
Sec. 226.26 Program information.
Persons desiring information concerning the Program may write to the
appropriate State agency or Regional Office of FNS as indicated below:
[[Page 243]]
(a) In the States of Connecticut, Maine, Massachusetts, New
H